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View Full Version : If I am eligible to purchase under the PFEC, can I buy firearms under federal law?


SlainDane
05-07-2010, 11:08 AM
I just got my notification regarding my Personal Firearms Eligibility Check. It's from the California Department of Justice, Bureau of Firearms.

"You are eligible to both possess and purchase firearms as of the date the check was completed."

I am a little unclear about the federal law requirements, however. I was checked in under a 5150 six years ago which made me question my eligibility in the first place. I have read online that federal and state laws can conflict.

So as the question states, can I purchase under federal law?

Does "committed to a mental institution" only mean if there's a crime involved? I was never charged with anything because I turned myself in.

Please ask for any more info if you need it.

Thanks a lot

dirtyJ
05-07-2010, 11:52 AM
As far as CA is concerned, you're good to go. I'm not sure what the Federal level says, but it might be worth the $25 to try it out.

GrizzlyGuy
05-07-2010, 12:06 PM
You're OK under both state and federal law. The 5150 prohibition is for 5 years, and that's a state law, not a federal law.

Federal law (http://law.onecle.com/uscode/18/922.html) only comes into play if you get held over beyond the 5150's 72 hours on a 5250. That fits the federal definition of being "committed". At that point, you would be prohibited for life. Same thing if a court adjudicated you as mentally defective. All of that is N/A based on what you said.

SlainDane
05-07-2010, 12:28 PM
Yeah, after I got out I received a letter from the Department of Justice saying I'm prohibited for 5 years. But I think I was in there for longer than three days.

If I was under a 5250, would I have gotten a letter saying it was permanent? I am kinda worried about if it was a 5150 or a 5250...

GrizzlyGuy
05-07-2010, 3:20 PM
Yeah, after I got out I received a letter from the Department of Justice saying I'm prohibited for 5 years. But I think I was in there for longer than three days.

If I was under a 5250, would I have gotten a letter saying it was permanent? I am kinda worried about if it was a 5150 or a 5250...

CA's 5250 prohibition is the same as the 5150 prohibition: 5 years. So you wouldn't be able to tell based only on that. It's the feds that make 5250 a lifetime prohibition.

Your PFEC came back clean and it seems like CA DOJ would know about a lifetime federal prohibition. But maybe not. I suppose you could request a copy of your medical records from the hospital to know for sure whether you ended up with a 5250.

boxbro
05-07-2010, 4:21 PM
I was never charged with anything because I turned myself in.

You voluntarily turned yourself in to the police or mental institution ?

SlainDane
05-07-2010, 6:59 PM
Mental institution.

How can I access my mental health records?

Should I request it from that particular hospital?

GrizzlyGuy
05-07-2010, 7:19 PM
Yes, call the hospital and ask them how you would go about getting a copy of your medical records.

The odd thing is that you shouldn't have received a firearms prohibition if it was truly a voluntary treatment. Health and Welfare 8100 (http://law.onecle.com/california/welfare/8100.html) and subsequent sections talk about that.

Oh well, when you get a chance to review the records it should all make sense.
Getting a clean PFEC back from DOJ suggests that things are probably going to work out well for you.

MP301
05-07-2010, 8:14 PM
When CA gave you their blessing, im quite certain that if you were federally prohibited you would not have been approved. If it were me, I would just make your purchase and make dam skippy you keep the approval letter in case there are issues down the road.

They would play hell trying to jam you up if they said it was ok. Plus, you have proof they said for 5 years and it has been 6?

I personally think that by digging deeper and meddling with your approal.....drawing unecessary attention to yourself in any manner....trying to find out what you already know..... could change things to the negative, but maybe that is just me...

dirtyJ
05-07-2010, 10:50 PM
...
The odd thing is that you shouldn't have received a firearms prohibition if it was truly a voluntary treatment. Health and Welfare 8100 (http://law.onecle.com/california/welfare/8100.html) and subsequent sections talk about that.
...

Doesn't always work that way. Many insurances require you to be declared officially 5150 in order for them to pay for treatment of the mental kind. My stepson is in this boat and he's stuck for another 4 years, even though it was voluntary.

GrizzlyGuy
05-08-2010, 9:04 AM
Doesn't always work that way. Many insurances require you to be declared officially 5150 in order for them to pay for treatment of the mental kind. My stepson is in this boat and he's stuck for another 4 years, even though it was voluntary.

Ahhhh... that makes sense.

FYI, your stepson can try to get relief from the 5-year prohibition by petitioning the court. The process is explained in Health and Welfare 8103 (http://law.onecle.com/california/welfare/8103.html) beginning at (f)(3). A lawyer can setup the hearing and the burden of proof is favorable to him:

The people shall bear the burden of showing by a preponderance
of the evidence that the person would not be likely to use firearms
in a safe and lawful manner.

If he has already gone a year without subsequent 'dangerous' incidents and his doctor(s) are willing to write a letter saying that he has been keeping his appointments, following the treatment plan, etc. he should have a really good chance of winning at the hearing.

REH
05-08-2010, 9:22 AM
I had a customer who was denied because of a 5150 and his was voluntary, two days. Expired, after 5 years though.

Whoa Nellie
05-08-2010, 9:51 AM
gWDKeFl-gwM

dantodd
05-08-2010, 9:58 AM
Stephen Halbrook just posted about this on a mailing list to which I subscribe:

See An Act to Improve the National Instant Criminal Background Check System, P.L.
110-180, 122 Stat. 2559 (2008).

An Act to Improve the National Instant Criminal Background 1 Check System, P.L.
110-180, 122 Stat. 2559 (2008).
2Id., Title I, § 101(c)(1).
3Id., Title I, § 101(c)(2)(A). Relief and judicial review shall be available according to the
standards in 18 U.S.C. § 925(c). The fee recovery provision states: “If the denial of a petition for
relief has been reversed after such judicial review, the court shall award the prevailing party,
other than the United States, a reasonable attorney's fee for any and all proceedings in relation to
attaining such relief, and the United States shall be liable for such fee. Such fee shall be based
upon the prevailing rates awarded to public interest legal aid organizations in the relevant
community.”
4Id., Title I, § 101(c)(2)(B).
5Id., Title I, § 101(c)(3).
6Id., Title I, § 101(c)(4).
NICS IMPROVEMENT ACT (2008) – SUMMARY
The law concerning mental disabilities was significantly revised with enactment of the
Act to Improve the National Instant Criminal Background Check System of 2008.1 No federal
entity may provide to NICS a disabling mental record if: (A) the adjudication or commitment
“has been set aside or expunged, or the person has otherwise been fully released or discharged
from all mandatory treatment, supervision, or monitoring”; (B) a court, board, or other lawful
authority has found the person “to no longer suffer from the mental health condition that was the
basis of the adjudication or commitment,” or the person has been “rehabilitated through any
procedure available under law”; or (C) the adjudication or commitment “is based solely on a
medical finding of disability, without an opportunity for a hearing” by a lawful authority, except
for a person who “was adjudicated to be not guilty by reason of insanity, or based on lack of
mental responsibility, or found incompetent to stand trial, in any criminal case or under the
Uniform Code of Military Justice.”2
The new law requires all federal entities that render mental adjudications and
commitments to establish a program for relief from disabilities. If an application for relief is not
processed within 365 days, it is deemed denied. Judicial review is de novo. If the denial of a
petition for relief is reversed, the applicant is entitled to attorney’s fees.3 Relief from disability
removes the record from NICS and enables the person lawfully to receive firearms.4
A federal entity which conducts mental commitments and adjudications is required to
provide oral and written notice at the commencement of the process of the prohibitions on receipt
of firearms, the criminal penalties, and the availability of relief from disabilities.5 Any name or
information provided in violation of the above procedures except for this notice requirement,
before, on, or after the effective date of the law must be removed from NICS records.6

anthonyca
05-08-2010, 2:14 PM
As far as CA is concerned, you're good to go. I'm not sure what the Federal level says, but it might be worth the $25 to try it out.

Are you talking about the DROS and the federal 4473? I was told there is no federal version of the 4473.

There is actually a case where a former FFL sued ATF and the case was thrown out. They said since he was not engaged in his business, and was not seeking to purchase a gun, and was not being punished for owning a gun, he has no grounds to challenge his prohibited status.

The problem was ATF used to recognize California expungement for a mist DV. ATF changed their opinion and he was suing. The ATF said if he did try to buy a gun he may be prosecuted.

The case is on the Volokah Conspiracy site, I am on a mobile device and too lazy to look for the link. I can find it if anyone is interested.

duldej
05-09-2010, 1:10 AM
i'm relieved because this is very good news. i, for one, am glad the doj actually keeps current in its paperwork.
with a pfec like that i would be quite confident.
i get the feeling along another line and judging by other threads that law enforcement interests might be a factor such that a clean doj pfec printout is good enough for anybody involved unless things get real slow, do you know what i mean?
please correct me if i'm wrong but when the fbi wants you it's the local police that track you down, and if doj tells them what to do all day long then fbi might have to wait.
i'm sure fbi chimes in once in a while with other jobs for the cops, too, such that yours, provided you can substantiate your claim and with doj paperwork, is a low priority and never gets done.
cops once stopped my gun sale in l.a. but i don't think it was decided by the fbi to do that.
if my pfec comes back clean from doj, and i am waiting on just that today, i, for one, am not worrying about the fbi.

cops do, however, always worry me.

your post baffles me, i must say, because i read two gray area things that i can't remember today the details:

1) pfec-fed? it exists but i can't find it now online.

2) check yourself in bans?

this one, i'm taking a stab:

you check yourself in and you can't own or possess firearms during that in patient span of time.

check yourself in (voluntary treatment), and are found to have serious problems ie. terminal alcoholism, maybe korsakoff's psychosis, or comatose and gravely disabled where then they've got you.

i don't think you can check yourself in even and be guaranteed a free pass so to speak, say if there's something really wrong with you. enter at your own risk, in a word.
i apologize for having no citations.

GrizzlyGuy
05-09-2010, 5:59 AM
Stephen Halbrook just posted about this on a mailing list to which I subscribe:

That's good info, I didn't realize that the feds had finally put in place a means of getting relief from the federal mental health prohibition. I searched around and found this article on it from NRA-ILS: Senate Passes NICS Improvement Act, House Concurs (http://www.nraila.org/news/read/newsreleases.aspx?id=10407)

We have a lot of bad firearms laws, but the ones related to mental health and TROs really bug me. What kind of society denies it's citizens a fundamental right just because they had the misfortune of getting sick? Then when they get better, they don't automatically regain the right. In the TRO case you are guilty until proven innocent and only a teeny-tiny bit of due process exists to protect you. 6A? Fuhget about it.

ETA: It also suggests that MP301 is right: a federal prohibition would almost certainly have shown up in the PFEC process. Clean PFEC = good to go

Cool Hand Luke
05-09-2010, 7:54 AM
We have a lot of bad firearms laws, but the ones related to mental health and TROs really bug me. What kind of society denies it's citizens a fundamental right just because they had the misfortune of getting sick?


A responsible society?

With all the people killed these days by people that have had mental disorders in the past yet were still legally able to purchase a firearm, we shouldn't take a bleeding heart liberal approach to gun ownership when common sense dictates that a person who has mental problems shouldn't own a firearm for a long time whether they checked themselves in or not.

The antis would have a field day with this thread. :rolleyes:

GrizzlyGuy
05-09-2010, 8:06 AM
A responsible society?

With all the people killed these days by people that have had mental disorders in the past yet were still legally able to purchase a firearm, we shouldn't take a bleeding heart liberal approach to gun ownership when common sense dictates that a person who has mental problems shouldn't own a firearm for a long time whether they checked themselves in or not.

The antis would have a field day with this thread. :rolleyes:

See the NRA-ILA article (http://www.nraila.org/news/read/newsreleases.aspx?id=10407) that I linked to. The antis already lost the argument:

Requires all federal agencies that impose mental health adjudications or commitments to provide a process for “relief from disabilities.” Extreme anti-gun groups like the Violence Policy Center and Coalition to Stop Gun Violence have expressed “strong concerns” over this aspect of the bill—surely a sign that it represents progress for gun ownership rights.

advocatusdiaboli
05-09-2010, 8:56 AM
I support the prohibitions but I also want to make damn sure there is an affordable due process to challenge them and redress errors. I say affordable given the court costs and lawyers fees today.

But let's not forget the recent pedophile rapes and murders--once someone is unfit we need to take precautions and really examine them until they are within normal parameters again. Those pedophiles that were released after heinous rapes just because they didn't kill even though their psychologists warned us about them are particularly troubling. I don't understand why we treat pedophile rapists with less gravity than firearms--it seems the former are at least if not more dangerous. So another innocent girls has to die to finally stop them. Something wrong with that system. What if the victim were a relative of yours? I know how I'd feel.

GrizzlyGuy
05-09-2010, 10:08 AM
I support the prohibitions but I also want to make damn sure there is an affordable due process to challenge them and redress errors. I say affordable given the court costs and lawyers fees today.

But let's not forget the recent pedophile rapes and murders--once someone is unfit we need to take precautions and really examine them until they are within normal parameters again. Those pedophiles that were released after heinous rapes just because they didn't kill even though their psychologists warned us about them are particularly troubling. I don't understand why we treat pedophile rapists with less gravity than firearms--it seems the former are at least if not more dangerous. So another innocent girls has to die to finally stop them. Something wrong with that system. What if the victim were a relative of yours? I know how I'd feel.

You're describing criminal acts perpetrated by criminals. Conviction for any one of those felony crimes will result in a lifetime prohibition. The law (http://law.onecle.com/california/welfare/8100.html) already provides for prohibitions when a psychotherapist hears someone make a threat.

People who have committed no crimes, made no threats, and may or may not even be ill end up losing their firearms rights/privileges based on a subjective judgement that they might be a danger to someone (per our 5150 (http://law.onecle.com/california/welfare/5150.html) law). So much for due process.

According to the federal government (http://www.nimh.nih.gov/health/publications/the-numbers-count-mental-disorders-in-america/index.shtml), "Mental disorders are common in the United States and internationally. An estimated 26.2 percent of Americans ages 18 and older — about one in four adults — suffer from a diagnosable mental disorder in a given year". That's in a given year.

Similar information from here (http://www.coolnurse.com/mental_healthusa.htm):

The majority of Americans will, at some point in their lifetime, meet the diagnostic criteria for one or more mental disorders. About one quarter (26 percent) of the general population reported symptoms sufficient for diagnosing such a disorder during the past year.

The majority of the population is an awfully big number. Why not just ban all firearms since most people will fall ill and might be dangerous at some point in their life? I'm sure that makes perfect sense to the antis, but not to me.

There but for the grace of God go I...

winnre
05-09-2010, 3:06 PM
As far as CA is concerned, you're good to go. I'm not sure what the Federal level says, but it might be worth the $25 to try it out.

What's the federal form and process used?

duldej
05-09-2010, 10:06 PM
i was brought-in because of section 5150 once and was accused of disturbing the peace, section 415 (pc).

some of you might be aware of codes of civil procedure sections 415, et seq that pertains to service of due process.

i'm a process server so i'm aware of those ccp codes but it strikes me funny that i was supposed to have been in violation of section 415 (pc) and then my own due process rights, 14a and 2a rights compromised, and it boils-down to fixing a number section 415 of whichever codes in ccr you want to cite.

i beat the rap that time and then i beat the prohibition danger rap. i sued the people because of the section 5150 detention and lost the lawsuit, but i did a lot of thinking about it in the one year's time approximately per that the criminal and the civil cases took.

i think a positive argument that is broadly embraced is well he's not obstructing justice and maybe seems to be promulgating justice, cf section 1203.4 (pc), so i'll ket him go, but i'd like to emphasize how bad it is to be finger-pointed at by one treacherous judgment call-making leo that you're somehow in contempt.

i'd like to state for the record that regarding 5150, the 2a prohibition is the worst part, and when you argue it (not yet), that's the principle that's so wrong, nevermind having your arms and legs bound with chains to a gurney and probably a tazer at your face.
i've never screamed so loud (to be let go) and for so long.

it's the treachery involved, and i'd like to bring-up 14a again because unless you bring it to court then you're hating life regardless of your 2a rights sanctified because when you are in court for traffic for instance it's just like setting aside and dismissing a penal code violation except that judge doesn't want to hear you (b/c you're crazy) and you won't have a fair trial for that reason.

it sometimes gets worse from there, too, as you might imagine.

some of us can't drive, for instance.... (oh is THAT all?) :)

frankrizzo
05-10-2010, 11:34 AM
That's good info, I didn't realize that the feds had finally put in place a means of getting relief from the federal mental health prohibition.

That's only partially true. The NICS Improvement Amendments Act (NIAA) which was quoted in the thread only requires Federal agencies to set up relief programs. There is no requirement that states do so as well, only a suggestion and the promise of some Federal grant money if they do.

The vast majority of mental health prohibitions in the NICS database are from state-level commitments. As such, the prohibition must also be removed by the state. This includes CA 5250 holds, and CA has not set up a relief program. So there is still no relief for anyone that has been held under 5250.

It's a rather backwards system. CA holds someone on 5250 and prohibits firearm ownership for 5 years at the state level. Since there was a "hearing" involved (though no judge unless specifically requested by the patient), it also constitutes "adjudicated as a mental defective" under Federal law, and thus a lifetime Federal prohibition is instituted. But, since the 5250 was performed by a state agency, the state must also remove it, even though it's a Federal prohibition. And, since CA apparently considers only the 5 year prohibition, they have no mechanism to remove the Federal prohibition. It's a bit ridiculous to even think about.

I just posted a thread about this a couple of weeks ago. See the link for more information and discussion.

http://www.calguns.net/calgunforum/showthread.php?p=4178596

frankrizzo
05-10-2010, 11:39 AM
For a definitive answer to the OP's question, yes, if your PFEC comes back that you are eligible, you are eligible for firearm ownership at both the state and Federal level.

If you had been held under 5250, your PFEC would tell you that you are ineligible.

SlainDane
05-10-2010, 5:57 PM
To FrankRizzo:

Thanks a lot. I'll look over that link...


Did you complete a PFEC and get a return saying you are ineligible?

frankrizzo
05-10-2010, 9:38 PM
To FrankRizzo:

Thanks a lot. I'll look over that link...


Did you complete a PFEC and get a return saying you are ineligible?

Unfortunately, yes.

SlainDane
05-11-2010, 1:57 PM
Just talked to a professional. He said there would have been a court involved if I got a 5250, and I would have known that.

I'm still going to go to the hospital tomorrow to get my records. I'll update for those of you who are curious...

winnre
05-11-2010, 3:45 PM
You voluntarily turned yourself in to the police or mental institution ?

So did Billy Joel. Anyone can, and sometimes the process is 2 weeks, and there is no backing out. Kinda like Scared Straight for the mind.

frankrizzo
05-11-2010, 4:18 PM
Just talked to a professional. He said there would have been a court involved if I got a 5250, and I would have known that.

I'm still going to go to the hospital tomorrow to get my records. I'll update for those of you who are curious...

More or less correct, but just to nitpick...

The 5250 involves a "certification hearing" that generally takes place at the hospital/institution. The only time a court or judge is involved is if the patient requests a Writ of Habeus Corpus to review (challenge) the certification.

duldej
05-11-2010, 6:28 PM
i would recommend petitioning the 5 year sanction that usually applies to 5150 but in this case 5250, and then taking it from there.
i guess the pfec is the law of the land then....
i'm waiting now for mine in the mail.
i'll be pleasantly surprised if doj was attentive to details because to wit i am good to go but there's fine lines involved like what did the judge mean when she stipulated that abd as a condition of probation so long as i'm working guns are ok but otherwise it's illegal (to own, possess or use them).
i don't want to beg the question but i ran into a lot of trouble the last time i ran a dros and it's bound to be better this time.
i was a fugitive from justice and i had a section 5150 problem.
i don't suspect that purchasing a firearm and lying on 4473 has a cumulative/prohibitive effect, but the check is surely in the mail.

Ron-Solo
05-11-2010, 8:56 PM
I was told there is no federal version of the 4473.



The 4473 IS a Federal form.

JasonDavis
05-12-2010, 7:10 AM
Penal Code section 12077.5 outlines the law on PFEC and the DOJ's obligations. Specifically, Penal Code 12077.5(c)(1) states that the DOJ shall: "Examine its records, and the records it is authorized to request from the [California] State Department of Mental Health pursuant to Section 8104 of the Welfare and Institutions Code, to determine if the purchaser is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm."

The problem is that a person may be prohibited because of an out of state violation that is not contained within California's records. For instance, a misdemeanor DV case from Florida will likely not show up in California's records search of "it's records," and therefore, CA may say you are eligible to possess, when in fact the person may not be eligible under federal law.

On a side note: An interesting point of Legislative error is the PFEC determines if the "purchaser" is eligible. The law should have stated "applicant," since no firearm is actually being purchased.

frankrizzo
05-12-2010, 9:31 AM
Great info!

I didn't even think about incidents from other states.