Wednesday, July 25, 2018

A Successful Restoration of My Client's Firearms Rights

Happy to report a very successful outcome for a client in a difficult action for restoring his firearm rights.

While no one wants the mentally ill that are determined to be a threat to themselves or others to have easy access to firearms, the current method of classifying people is casting far too wide a net. My client was denied his right to purchase and own firearms under Title 18, United States Code, Section 922(g)(4): as “A person who has been adjudicated as a mental defective or who has been committed to a mental institution.”

The problem is the FBI’s NICS Section takes a very expansive view of “adjudicated as a mental defective”, and currently has a practice of including anyone who has ever had an adult guardianship or conservatorship entered on their behalf, for any reason, on the grounds that it shows that the person “lacks mental capacity to manage his own affairs”.

My client, a male in his middle 60’s with no criminal record, had a guardianship in place to make decisions for him when he went in for some serious surgery five years ago. Given the pain he was under at the time, he was unable to manage his own affairs. Even as the court entered it as a limited guardianship, and the guardianship was terminated in a year when he was fully back to health and capabilities, he found out to his dismay that he was unable to purchase a firearm when he was denied under the NICS system.

Never having been adjudicated to have been a threat to himself or others, and never involuntarily committed to a psychiatric institution, my client now found himself lumped into that category and without any means of being removed from the NICS denial list.

There currently is no federal program to administratively be removed in the case of a mental health based denial from NICS, nor does Michigan have a federally recognized program to allow for such a removal. In short, there is no way to get off the “no buy list” once you’ve been placed on it for a 922(g)(4) classification. Even if you were properly classified that way years ago and are now not a threat to yourself or others, once disqualified under 922(g)(4) you cannot get it removed.

The only recourse is to sue on behalf of the client, and indeed I did sue the United States and its relevant agencies for violations of his Second Amendment and Fifth Amendment rights.

We have now reached a successful resolution of the case, quite quickly in no small part due to the very professional Assistant United States District Attorney assigned to the case, who read my complaint and understood we had a very viable claim and cause of action.

My client now has been removed from the NICS denial list and his firearms rights are now fully restored.

6 comments:

Glenn B said...

Bravo, nice work.

drjim said...

Thank you for doing this.

Hopefully it will set a precedent so others may have their rights restored.

MrGarabaldi said...

Hey Aaron;

YOu done good, a win for "us" is a win for everyone. When .gov can strip a persons rights with no recourse, then tyranny can appear.

Aaron said...

Glenn B: Thanks.

drjim: It won't set legal precedent as it was resolved prior to a judgment and isn't going to any appellate court to become binding precedent. In short my client got a resolution and didn't have to spend tens of thousands to get it to the appellate level to become precedent so he's happy. But, it will likely be used by the district attorneys office as part of their policy to resolve these matters in the future, which will be good. There is already some related precedent which is helpful if not exact.

MrGarabaldi: Thanks, there really was a complete lack of any due process to get off the list once you're on it for mental health related issues, even if you were mistakenly placed on it or got provably better. Only way for now to rectify it is to file a lawsuit.

Joe Mama said...

Thanks for posting this.

It is a sobering reminder that "filing" to have somebody declared incompetent, whether temporary or not, is not a trivial matter.

Aaron said...

Joe Mama: Considering the consequences it’s not a decision to take lightly. Sometimes it is definitely warranted but it’s often the wrong tool to use. Instead of a guardianship the client should have given the person a Power of Attorney to handle his affairs without the consequences of a guardianship.