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.

THE ENIGMATIC PJC: Part I WHAT IS IT?

The Prayer for Judgment Continued (PJC) is a strange sentencing concept. It is an acceptance of responsibility but not a conviction. It is a resolution of a criminal or traffic charge but not a dismissal. It isn’t appealable and uncertainty exists as to whether PJC charges can be expunged.
The PJC is a sentencing option. If a person admits responsibility for a crime or gets convicted by plea or trial, a judge has three options for sentencing:
1) Impose an immediate sentence such as a fine and or incarceration,
2) impose a sentence but suspend it or
3) impose a Prayer for Judgment Continued. Whether the PJC acts as a final resolution depends on the words and intent of the judge.
a) A PJC may signify the final resolution where the court intends that judgment will be continued indefinitely and no additional proceedings will occur. An example is when upon a conviction of multiple charges, a sentence is imposed on some charges and a PJC is imposed on others. Here, no further proceedings are contemplated.
The PJC is viewed as a way for a judge to exercise discretion and reduce the impact of a criminal proceeding. By withholding judgment in an appropriate case, a judge can minimize the effects and consequences of the crime or offense.
In traffic cases, the PJC resolution saves the defendant from incurring license and insurance points. A PJC may be used once every three years per insurance policy, not per driver.
and twice every 5 years for DMV purposes.
b) A PJC may be continued for a specified period of time and if during that period of time, the defendant fails to comply with the conditions of the PJC, the prosecutor will “pray for judgment” and ask the judge to impose judgment. Until the expiration of the duration of the specified period of time, the PJC can still revert to a conviction.
c) A PJC may act as a placeholder when the sentencing must be delayed such as when defendant is tried in absentia or when the judge needs additional information before imposing sentence.

The next blog post is part 2 of this series: Can a PJC be expunged?

Homicide and Manslaughter Charges Now Filed for Hazing Deaths

Injuries and death caused by hazing are no longer excused or treated with a slap on the wrist. Prosecutors are bypassing misdemeanor hazing charges for the much more serious murder and manslaughter charges when death results from a hazing ritual.
“Go back a generation or two, and hazing was accepted conduct, part of the fraternity experience, part of the football experience,” said David LaBahn, president of the Association of Prosecuting Attorneys. Now it’s no longer ‘boys will be boys’ and ‘why is the prosecutor getting involved in this?’ I think there is much more acceptance out there that this is unlawful behavior.”
Three cases: LSU, Penn State and Baruch College illustrate this new reality:
At LSU: On September 13, 2017, at the Phi Delta Theta house, an 18-year-old pledge died of acute ethanol intoxication with aspiration after playing a drinking game. His blood alcohol content was .496 percent, more than six times the legal limit. He and other pledges had received text messages ordering them to report for “Bible study at the chapter house. “Bible study,” was question-and-answer game during which pledges were forced to drink “a pull” from a bottle of alcohol if they answered questions incorrectly. The 19-year-old fraternity member who was in charge of the hazing event and who aggressively insisted that the pledge drink was charged with negligent homicide and misdemeanor hazing. Nine other students are currently facing hazing misdemeanors and expulsion.
At Penn State: On February 2, 2017 at the Beta Theta Pi house, pledges were forced to line up for a “gauntlet” of drinking stations. First, they passed a vodka bottle down the line. Each pledge was ordered to drink before moving to the next station. The pledges were then ordered to “shotgun” a beer, and made to drink from a wine bag. Finally, the were obligated to finish with beer pong. In a group message sent shortly before midnight, one of the fraternity members texted that an 18-year-old pledge had fallen 15 feet down a flight of stairs and would need help.” Video from the fraternity showed the pledge stumbling and hitting his head on a railing, on the stone floor and on a furniture. A few times, a fraternity brother walked into the lobby, saw the pledge lying on the couch and failed to render aid. Instead he was “back-packed.” A backpack stuffed with textbooks was placed on his back to weigh him down so that he would not roll over and choke on his vomit. While he drifted in and out of consciousness, fraternity brothers splashed water on his face in an effort to revive him. Twelve hours after the gauntlet game commenced, 911 was alerted but by then he had died. Eighteen Penn State students were charged: eight with involuntary manslaughter and ten with hazing misdemeanors and furnishing alcohol to minors.
At Baruch College: On December 9, 2013, a Pi Delta Psi pledge participated in a ritual called the “Glass Ceiling.” He was blindfolded and made to wear a backpack weighted with sand while crossing a frozen field as members of the fraternity tackled him. During at least one tackle, he was lifted up and dropped on the ground in a move known as “spearing.” He complained his head hurt but continued participating and was eventually knocked unconscious. Fraternity members carried him inside and contacted a national fraternity official who told them to hide fraternity items. Some members left the house, while others changed his clothes and conducted internet searches to diagnose his symptoms. When the pledge experienced trouble breathing, he was driven to the hospital where he died of severe head trauma. Initially, 37 people were charged in connection with his death and faced assault and hindering apprehension charges. Five fraternity members were charged with third-degree murder which did not require a specific intent to kill. Eventually, four of the men who had been charged with murder pleaded guilty to reduced charges of voluntary manslaughter and hindering apprehension.

REVENGE PORN LAW- TAKE 2

In an effort to keep pace with the posting of sexual or private images, videos and live stream on social media, the North Carolina Revenge Porn statute, G.S. 14‑190.5A, has been significantly modified. The Revenge Porn law is the mechanism by which public disclosure of intimate images is criminally punished. Previously the law required that a “personal relationship” exist between the defendant and the subject of the image but no longer. All that is required is the publication of intimate content intended for humiliation, coercion, intimidation or financial loss. Violation of the statute is a felony for adults and repeat offender minors and a misdemeanor for those under 18. The crime is complete if the defendant:
(1) posts an image, video or live stream,
(2) of “naked human parts” (genitals, pubic area, anus, woman’s nipple) or sexual, excretory or lewd exhibitionistic activity,
(3) of a person who is identifiable either in the image or by accompanying information,
(4) without that person’s consent or with an expectation that the image would remain private and
(5) disclosure is intended to harass, intimidate, embarrass or cause financial
loss to the depicted person.
Under this modification, the defendant does not even have to know the victim and the victim doesn’t have to be aware of the taking of the image(s). Photographing a person with a telephoto lens when they were unclothed or engaging in a sexual act would qualify if performed with the required intent.
I can foresee First Amendment challenges to some of the wording used: “normal or perverted” and “clad in revealing or bizarre costume.” Additionally, the legislature expressly mentioned that the scenario wherein an identifiable person’s head was superimposed onto another body was not within the scope of this law but would be “studied” and may be the the subject of the next modification.

UNLIMITED EXPUNCTIONS FOR DISMISSED/NG CHARGES IF NO FELONY PRIORS

Awaiting Governor Cooper’s signature is SB 445 which modifies NCGS § 15A-146. The new proposed law permits an unlimited number of expunctions for charges which were dismissed or disposed of by a finding of “not guilty” or “not responsible” as long as that person has not sustained a felony conviction. This is a major modification of the law which previously required that no previous expunctions had been granted and the dismissals must have occurred within a 12-month period or within the same court session.
Additionally, a person may file a petition for expunction of a nonviolent misdemeanor or nonviolent felony conviction if the person has no other misdemeanor or felony convictions. Non-violent felony convictions can be expunged 10 years after the conviction date or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later. Nonviolent misdemeanor convictions may be expunged after 5 years after the conviction date or probation or post-release supervision completion. This is a substantial reduction from the current waiting period of 15 years. (NCGS § 15A-145.5) Once signed, this law will be effective on December 1, 2017.
Update: This bill was signed into law and takes effect December 1. 2017.

THE US SUPREME COURT STRIKES DOWN NC LAW BARRING PERSONS ON SEX OFFENDER REGISTRY FROM ACCESSING SOCIAL NETWORKING SITES

In 2010, Mr. Packingham, a person listed on the sex offender registry, posted on Facebook a note of gratitude to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that made it a felony for a convicted sex offender to use social-networking websites which allow minors to create profiles. Today, the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

In 2012, I represented Mr. Packingham and filed a motion to dismiss because the statute infringed upon the First Amendment right of free speech. Today in an 8-0 decision, the USSC agreed. Justice Kennedy began by outlining what he described as a “fundamental principle of the First Amendment”: that everyone should “have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” And even if once it may have been hard to determine which places are “the most important” “for the exchange of views,” Kennedy concluded, it isn’t hard now. Instead, he reasoned, it is “clear” that the Internet and, in particular, social media provide such opportunities.

He wrote that North Carolina’s law stifled “lawful speech as the means to suppress unlawful speech.” By barring sex offenders from using social-networking sites, he continued, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” “In sum,” Kennedy concluded, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

This case is important because it “is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.” Justice Kennedy warned that the court should “exercise extreme caution before suggesting that the First Amendment provides scant protection for access” to ubiquitous social-networking sites like Facebook and Twitter.

RESTORATION OF GUN RIGHTS AFTER INVOLUNTARY COMMITMENT-PART 2

 
Under state and federal gun laws, a person who has been involuntarily committed to a mental health facility may not possess a firearm. (NCGS§14-404(c)(4), 18 U.S.C. § 922(d)(4)) However, this prohibition may be lifted by complying with the restoration protocol articulated in NCGS§ 14-409.42.
Step 1: File and serve a petition in the same district court which adjudicated the involuntary commitment once the commitment has ended and once the mental condition which led to the commitment has been treated. The petitioner must be able to prove that he/she will not be likely to act in a manner dangerous to public safety and that the restoration of the firearm rights would not be contrary to the public interest. Petitioner must sign a release of information so the prosecutor can obtain mental health records for the hearing.
Step 2: At the hearing, the district attorney can present evidence from petitioner’s mental health records, juvenile records, and criminal history. The judge will decide the case on the following items of evidence: the petitioner’s mental health and criminal history records, the petitioner’s reputation or other character evidence, and any changes in the petitioner’s condition or circumstances since the original determination or any findings relevant to the relief sought.
Step 3: The judge will decide if the petitioner has proven that he/she is not 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. If the judge rules in petitioner’s favor, the clerk of court will send the order to the National Instant Criminal Background Check System (NICS) and the prohibition against firearm possession is lifted.
Step 4: If the judge rules against petitioner, the case can be appealed to the Superior Court for a new hearing. If the Superior Court denies the petition, then the applicant must wait a minimum of one year before reapplying.

PERSONS WITH MENTAL HEALTH ISSUES AND THEIR RIGHTS TO POSSESS A GUN- PART 1

The United States was created on the premise that possession of guns and the right to arm oneself was a right of the individual. This right is not without exceptions and individuals who have been adjudicated to be mentally incompetent or involuntarily committed to a mental institution cannot possess a gun.
But what about persons who have not been adjudicated incompetent or involuntarily committed? What about persons who receive Social Security disability benefits because they are autistic, bipolar, depressed or anxious to a degree that they are unable to work and a money manager handles their finances? Should they be precluded from gun ownership?
Under the Obama administration, persons receiving SSI with a representative payee, such as a person with autism who had no intellectual impairment and no language impairment, a person with agoraphobia or social anxiety disorder would have been forbidden from keeping a firearm in their home for self-defense.
The strange bedfellows of the ACLU and the NRA fought this regulation on the basis that that without a judicial determination, the constitutional rights of those with mental issues were being arbitrarily abridged. Additionally, the inability of persons to work or manage their money did not correlate to increased likelihood to commit violence. Research shows that the cohort with serious mental health issues was no more likely than the general population to use a firearm to harm others or themselves.
This order was rescinded but persons with mental health issues and especially those who depend on government aid are a particularly vulnerable group and cannot be treated as a lesser class. We must avoid disparate treatment whenever possible.

“All animals are equal but some animals are more equal than others.” (George Orwell, Animal Farm)

Part 2 of this blog will address restoration of gun rights.

Sources:
N.C.G.S.§ 14-404(C)(4),
18 U.S.C. §922(d),
20 CFR Part 421,
Dist. of Columbia v. Heller (2008) 554 U.S. 570,
Jeffrey Swanson, “The ban on mentally ill people buying guns wasn’t ever based on evidence,” The Washington Post, February 10, 2017,
Implementation of the National Instant Criminal Background Check System Improvement Amendments Act, www.regulations.gov/document?D=SSA-2016-0011-3998
www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm

WHY TEENS TAKE RISKS AND HOW TO HELP THEM MAKE SAFE CHOICES

Although teens and young adults are encouraged to act independently in the academic, employment and social world, they are not biologically equipped to do so. The amygdala, the impulsive, “flight or fight” part of the brain is in control since the prefrontal cortex which is responsible for making well reasoned decisions is not mature until age 25. Consequently, their decisions are often irrational and flawed.
Teens and young adults are “sensation seekers” which means that they actively search out opportunities to have new and risky experiences. Add to this thrill-seeking component, the need for peer approval, the availability of unsupervised free time, the American emphasis on independence and the stage is set for poor decision making.
Teens and young adults spend most of their time in groups or cliques and the approval of peers directly correlates to feelings of positive self worth. Teens and young adults erroneously credit their peers with having a much more exciting life than they actually do. The belief that others are leading a much more exciting life spurs the adolescents and young adults to engage in more dangerous and risky activities than they would otherwise. Then their acts are used by other teens to ratchet up their excitement quotient.
Studies show that intelligence and academic success is no guarantee that teens will make well reasoned decisions. Self-efficacy is confidence in one’s self-worth and decision-making skills independent of the peer group. A confident and grounded teen may be able to reject an undesirable peer suggestion on a case by case basis by creating a safe way to fit in the group without expressly rejecting the choice of the peers. Going out with peers but volunteering to be the designated driver, or using humor or other diversionary tactics to maintain peer approval while avoiding the risky activity is more socially successful than avoiding the peer activity entirely.
Making the teen/young adult’s self-regulatory behavior more automatic and less dependent on individual self-determination maximizes the opportunity for good decision-making. In other cultures, self-control and delayed gratification skills are taught at an early age and practiced in daily life. If the safer course of action is ingrained in the teen’s mind, the opportunity for independent thought is reduced as is the opportunity for a poor outcome.
Finally, minimizing unstructured time also reduces the opportunity for engaging in risky activities. In other cultures, teens do not engage in as many risky activities because structured schedules leave little time for discretionary time.