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choprzrul
07-22-2011, 12:50 PM
All jokes aside;I am curious as to what level of mental defectiveness one must have to be precluded from firearms purchase and ownership?

1. Under care/counseling of a psychiatrist/psychologist?

2. Taking medication prescribed by above?

3. Previously checked oneself into a mental institution for care from #1 and/or #2 above?

4. Having been previously diagnosed & under care of #1 or having previously or still taking drugs for previous or current mental conditions?

5. Placed in mental institution by police or the courts sometime in the past?

6. ?


What current conditions and past conditions; and their state of current or past care and/or medication preclude someone from firearms ownership and/or purchase? What is the tipping point between ok and not ok?

.

steelrain82
07-22-2011, 12:54 PM
well I know a lot of vets who are #1,2, and 4 and they are allowed to own and possess guns. so i think you probably need either 3 or 5 to seal the deal

dfletcher
07-22-2011, 1:01 PM
All jokes aside;I am curious as to what level of mental defectiveness one must have to be precluded from firearms purchase and ownership?

1. Under care/counseling of a psychiatrist/psychologist?

2. Taking medication prescribed by above?

3. Previously checked oneself into a mental institution for care from #1 and/or #2 above?

4. Having been previously diagnosed & under care of #1 or having previously or still taking drugs for previous or current mental conditions?

5. Placed in mental institution by police or the courts sometime in the past?

6. ?


What current conditions and past conditions; and their state of current or past care and/or medication preclude someone from firearms ownership and/or purchase? What is the tipping point between ok and not ok?



My suggestion for # 6 - I think being re-elected to the CA legislature ranks pretty high on that list. Sorry, asking for a suggestion kind of drew it out of me ....

Whatever the level - and I don't think items 1 & 2 meet the criteria - the action must make itself into the federal reporting system. I would think #5 would reach that level but as we've seen with recent shootings that isn't the case.

Ubermcoupe
07-22-2011, 1:08 PM
# 5.5: found to be mental incompetant to stand trial by a judge

NVM: didn't see the "courts" part. Hope that doesn't qualify me... ;)

choprzrul
07-22-2011, 3:14 PM
Is there no legally defined dividing line? i.e. 'this is ok' , but if 'this' is in your past you are ineligible?

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The Director
07-22-2011, 3:18 PM
My wife says I'm mentally defective.

golfrj
07-22-2011, 3:22 PM
Confined by order of the Court, or Reported by Shrink to be a Danger to oneself or Others...

So it would be #5 and #6...

ps... since when is Nebraska "Central Coast?"

golfrj
07-22-2011, 3:24 PM
My wife says I'm mentally defective.

Is she a Shrink?, if so, Hurry give us your Guns......

HowardW56
07-22-2011, 3:45 PM
I saw the thread title and wondered if this thread was about Jon Birdt or Charles Nichols...

But it isn't... Not that I would ever accuse either of these gentlemen of having a mental defect, publicly..... :rolleyes:

RudyN
07-22-2011, 3:47 PM
One thing I know is that when the court determines you are not able to take care of yourself due to a mental problem a notice is sent to the state indicating you cannot own or possessa a firearm.

Wherryj
07-22-2011, 3:47 PM
Here is the problem, One who checks in for depression (everyone at one point in their life may be depressed) or any other ailment has a right to privacy in what happens between himself and the doctor. Self admission would not be a disqualifier unless it was stated you were in fact trying to kill yourself.

I would have to think you would have to commit a crime or attempt a crime with police taking you in to get you help in order to be disqualified from owning a gun.

Even in the case of self-admission for suicidal thoughts that shouldn't necessarily be a long term disqualification. People DO get better, and there are a lot of situations that can bring otherwise stable people to a very low point, at least temporarily.

The biggest issue is who gets to decide which person is "mentally defective" and for how long.

In CA, I suspect that the primary criterion is whether someone looks scary. That seems to be the primary criterion for the firearms themselves.

nicki
07-22-2011, 3:50 PM
All kidding aside, this is significant in that there still is alot of societal stigma against individuals who are labeled "mentally ill".

In the Soviet Union, the mental institutions were where political dissendents were sent because their thinking wasn't right.

Nicki

choprzrul
07-22-2011, 5:29 PM
Confined by order of the Court, or Reported by Shrink to be a Danger to oneself or Others...

So it would be #5 and #6...

ps... since when is Nebraska "Central Coast?"


Displaced Husker living in the Pismo Beach area :D Born with Husker Red flowing through my veins. You can take me out of Nebraska :auto:, but you won't get the Husker out of me :11:



Seriously though, what brings all of this up is that my wife brought up a very valid point the other day: Almost all new mothers and some new fathers go through some sort of postpartum depression. It is widely known and I am sure that millions have been treated for it with counseling & drugs.

Let's take this hypothetical: A young single mother (18 years old let's say) gives birth. The father and her have had a falling out during the pregnancy, and now the father is threatening to kill her and take the baby. The young mother is suffering from postpartum depression and taking a mild medication prescribed by her psychiatrist.

If ever there was someone who needed the 2A, it would be this young mother to protect her newborn and her own life. Yet, she would have 2 strikes against her since she is not old enough to buy a handgun and she is actively being treated for postpartum depression and taking drugs for it.

So the question is: how can the state or the feds (in another hypothetical USSC brief & pleading) justify separating the young mother from her civil rights?

Heavy. My wife really made me think on that one. It certainly stirs the sympathy within me.

What say you?

.

golfrj
07-22-2011, 5:57 PM
The ONLY problem your young mother has is she is 18 years old, she should buy a shotgun.. Actively being treated does NOT count UNLESS her Shrink thinks she is a Danger and has reported that... Usually the only time a Shrink will report is IF the Patient tells them they are considering suicide or murder...

choprzrul
07-22-2011, 6:02 PM
The ONLY problem your young mother has is she is 18 years old, she should buy a shotgun.. Actively being treated does NOT count UNLESS her Shrink thinks she is a Danger and has reported that... Usually the only time a Shrink will report is IF the Patient tells them they are considering suicide or murder...


Therein lies the problem: if that healthcare professional is told that "....I will kill him if he comes around my baby and I....", the mother may very well be reported. What then? What if she is 17 instead of 18? 17 years, 11 months, and 3 weeks old means that she has no path to exercise of her 2A civil rights in the face of very real danger? Likewise, if she is reported, the risk level is still the same for her and her baby, but yet she will be separated from her 2A civil rights because of postpartum depression???

Why should this young mother not be able to defend herself and her baby?

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SanPedroShooter
07-22-2011, 6:03 PM
I belive you must be adjudicated mentally defective. A court must decide that you are a danger to self or others or incapable of providing for yourself.

I dont think there are any inbetweens. If you see a doctor for depression, or any thing for that matter, as long as you dont end up in court over it, you're good.

SanPedroShooter
07-22-2011, 6:05 PM
and if a shrink were to report a suicide attempt, you would most likely be 5150'd, if you didnt get better, you'd be 5250'd then court, then adjudacation.

thats my understanding.

Ford8N
07-22-2011, 6:28 PM
I have heard of cops who are being treated by psychiatrists, on medication and they can carry guns. Having mental illness is not something that will disqualify you from becoming a cop.

sakosf
07-22-2011, 6:54 PM
Treatment by a psychiatrist could be for a range of problems.....maybe just a simple phobia, anxiety or depression, sexual problem......or a major psychosis. It's up to the mental health professional to report someone who may be dangerous to themselves or someone else

choprzrul
07-22-2011, 6:57 PM
Treatment by a psychiatrist could be for a range of problems.....maybe just a simple phobia, anxiety or depression, sexual problem......or a major psychosis. It's up to the mental health professional to report someone who may be dangerous to themselves or someone else



So does this mean, in essence, that any of us can be separated from our civil rights based upon someone's opinion?

.

golfrj
07-22-2011, 6:57 PM
Therein lies the problem: if that healthcare professional is told that "....I will kill him if he comes around my baby and I....", the mother may very well be reported. What then? What if she is 17 instead of 18? 17 years, 11 months, and 3 weeks old means that she has no path to exercise of her 2A civil rights in the face of very real danger? Likewise, if she is reported, the risk level is still the same for her and her baby, but yet she will be separated from her 2A civil rights because of postpartum depression???

Why should this young mother not be able to defend herself and her baby?

.


The Real problem here is her age, Not the Depression.. She is unable to obtain a gun whether depressed or not.. She needs to "Borrow" something for a shooting class she is going to take, and to do that she needs her Parents consent.. She is old enough to be a Mom but not Vote, Drink OR have weapons.. Unsolveable problem unless family steps in.. If she were Yours or Mine we know what to do...

And Yes to your 2nd question, they can and Will put you away...

RickD427
07-22-2011, 7:04 PM
Of the OP's list of choices, #5 comes close. Here's the language right out of 18USC922 that defines the federal disability:

"who has been adjudicated as a mental defective or who has
been committed to a mental institution."

IANAL, but the words "adjudicated" and "committed" tell me that a court must make a finding that a person is mentally defective. There is no requirement that the person be placed into a mental institution (the section uses the word "or" between it two parts). It would appear that if a judge makes a finding of mental incompetence, but does not order a corresponding commitment, the disability is still triggered.

California law is kinda confusing on the point. It duplicates the federal disabilities for persons adjudicated as mentally ill. There are also temporary disabilities for those undergoing inpatient mental treatment, those who make threatening disclosures to certain professionals, and for some (but not all) of those detained for emergency mental treatment. These do not require any adjudication by a court. Please refer to sections 8100-8103 of the Welfare and Institutions Code

frankrizzo
07-22-2011, 11:45 PM
"Adjudication" does not require a court or judge, despite the implied meaning. In CA, a 5250 is considered an adjudication, but unless specifically requested by the patient it does not require a court hearing or a judge. Generally a certification review hearing is conducted on site where the patient is committed, but it is not a judicial hearing in the traditional sense. Even though a 5250 is only a 5-year prohibition under CA law, because of the review hearing it meets the Federal standard as "adjudicated as a mental defective" and results in a lifetime Federal prohibition on firearms ownership.

Other CA prohibitions due to mental health issues are temporary state prohibitions, of which the 5150 and its 5-year prohibition is the most severe. There are also some shorter prohibitions, but they are not as common as 5150/5250 detainment.

Legally, those are the requirements and implications. As for the OP's question of what level of mental defectiveness is required for a firearms prohibition, the answer is not simple. Due to a 5250 from over 15 years ago, I am currently prohibited for life under Federal law with no possibility of relief unless the CA legislature enacts a relief provision. I am also happily married and an electronics engineer for one of the largest technology companies in the world. Few would argue that I am mentally defective, yet that is my classification under the law due to an isolated incident from my turbulent youth. I never tried to hurt anyone either, least of all myself.

There is little justice to be found in the mental health system, especially when it comes to firearms rights. For what it's worth, my advice is to stay as far away from the system as possible.

mag360
07-23-2011, 12:06 AM
SF Chronicle- "The 9th circuit ruled today that any individual who is in posession of a firearm is hereby mentally defective, and therefore cannot use firearms."

They would love to print that headline!!

andytothemax
07-23-2011, 5:13 AM
All jokes aside;I am curious as to what level of mental defectiveness one must have to be precluded from firearms purchase and ownership?

1. Under care/counseling of a psychiatrist/psychologist? NO

2. Taking medication prescribed by above? NO

3. Previously checked oneself into a mental institution for care from #1 and/or #2 above? NO as long as you were there voluntarily and not 5150'ed for danger to self or others. A 5150 for "grave disability" (unable to function in society) results in no ban at all. However you are prohibited from possessing a firearm while undergoing treatment in the facility. A 5150 for danger to self or others results in a five year ban under CA law but no ban under federal law. A 5250 is when you are "certified for intensive treatment" involuntarily, which requires notice and a hearing. If the judge or hearing officer grants the facility's request to treat you involuntarily, you have been adjudicated mentally defective. That results in a 5 year ban under CA law but a lifetime ban under federal law. See Probate Code sec. 8100-8103 as cited by one of the other posters. You can petition the probate court for relief from the 5 year ban (they give you a form upon your release from the facility that advises you of this procedure), but this has no effect on the federal lifetime ban.

4. Having been previously diagnosed & under care of #1 or having previously or still taking drugs for previous or current mental conditions? NO. Taking prescribed medication is not a disqualifier.

5. Placed in mental institution by police or the courts sometime in the past? See answer to #3.

6. ?


What current conditions and past conditions; and their state of current or past care and/or medication preclude someone from firearms ownership and/or purchase? What is the tipping point between ok and not ok?

.

See answers above. The tipping point is danger to self or others for the five year ban, and for lifetime ban whether a hearing officer has formally adjudicated your case after a hearing. You have the right to an attorney at the hearing who specializes in mental health cases, free of charge.

If the hearing officer denies the facility's petition to treat you involuntarily because you demonstrate you're ok or otherwise, you're good to go unless you were 5150'ed as a danger to yourself or others, in which case you have a five year ban under CA law and no ban under federal law.

The facility can keep you on a 72 hour hold for 5150, and if you don't get better and don't agree to stay voluntarily, they can certify you for intensive treatment. The hearing for that has to be within 4 days of you receiving notice of the certification, which is a standard form that says something like "we allege that you are unable to consent to treatment and therefore we seek the court's permission to treat you involuntarily." If the petition is granted they can keep you for 14 days and continue certifying you if you don't get better.

So if you get better within 7 days and before the hearing, or if you change from involuntary to voluntary status, the facility will drop the request for intensive treatment.

To summarize, if you were 5150'ed for "grave disability" there is no ban under either state or federal law and you're good to go. If you were 5150'ed as a danger to yourself or others there's a five year ban under CA law. If you were 5250'ed (intensive treatment), five year ban under CA law and lifetime ban under federal law.

Conservatorships and civil commitment to a mental institution are whole separate procedures that I'm not qualified to give an opinion on.

Case examples of the two clients I've represented in this area:

1. Guy was 5150'ed as a danger to self or others and put on a 72 hour hold in an inpatient facility. He didn't get better, and the hospital gave notice of a certification hearing. I helped prepare him for the hearing but I had to turn him over to a mental health attorney because I wasn't qualified to assist further. He lost. Lifetime ban under federal law.

2. Guy voluntarily presented himself at an emergency room saying he was psychotic but not suicidal or homicidal. During his initial voluntary treatment, he had an allergic reaction to an antipsychotic drug the hospital gave him, and he threatened to leave the hospital before treatment was complete. For his own protection he was 5150'ed as "gravely disabled" and put on a 72 hour hold in an inpatient facility. He didn't get better, and on day 3 the hospital gave notice of a certification hearing. The hearing was set for day 7. The guy got better on day 5 and with the consent of the attending physician he changed to voluntary status by signing a hospital admission form agreeing to voluntary treatment. The hospital dropped the certification petition on day 5 and there was never a hearing. Guy left the hospital on day 8. No ban; he purchased multiple guns over the following year with no issues. My personal opinion is that this guy shouldn't have been 5150'ed because he initially went in voluntarily and it was his agitated reaction to the antipsychotic medication that caused the grave disability. Fortunately there is a loophole in the 5250 statute that lets the hospital detain someone for up to 7 days without a certification hearing. This guy fit perfectly in the exception. It turned out he had bipolar disorder not psychotic disorder, and is on medication and seeing a psychiatrist regularly. He's in full remission and good to go. A side note, he later applied for a CCW and explained this situation, and was denied on good cause grounds rather than mental health grounds (one of the questions on the form is whether you've ever received mental health treatment).

Based on my experience with people with mental disabilities, the stigma attached to most mood disorders or psychotic disorders is not deserved. Modern medications like Abilify (antipsychotic mood stabilizer) can turn a person with even severe bipolar disorder (Bipolar 1 with psychotic features) into an otherwise normal and productive member of society. There are exceptions of course, like schizophrenia (very dangerous illness) and dementia. Frankly I believe personality disorders are sometimes more dangerous because they cannot be controlled with medication and are undetectable if the person is never hospitalized or caught. Think Ted Bundy. Still, there are many people with mood disorders, psychotic disorders, and personality disorders who never need treatment and never get in trouble, because they are never pushed beyond their limits or their conditions are not severe enough.

For a full list of generally accepted disorders, see here (http://en.wikipedia.org/wiki/DSM-IV_Codes).

frankrizzo
07-23-2011, 8:49 AM
You have the right to an attorney at the hearing who specializes in mental health cases, free of charge.


I don't think that's correct. According to this (http://www.lasuperiorcourt.org/mentalhealth/FacilityBasedHearings.htm), a private attorney may be present, but that of course would be at the patients' own cost, not provided free.

The representative provided free of charge is the Patients' Rights Advocate, which in my experience was a far cry from an attorney. There's no record that my advocate was even present at my hearing, though I admittedly cannot say for certain since the facility sedated me 2 hours before my hearing took place and I thus slept through it. According to what little records exist, I was "anxious".

golfrj
07-23-2011, 11:02 AM
I don't think that's correct. According to this (http://www.lasuperiorcourt.org/mentalhealth/FacilityBasedHearings.htm), a private attorney may be present, but that of course would be at the patients' own cost, not provided free.

The representative provided free of charge is the Patients' Rights Advocate, which in my experience was a far cry from an attorney. There's no record that my advocate was even present at my hearing, though I admittedly cannot say for certain since the facility sedated me 2 hours before my hearing took place and I thus slept through it. According to what little records exist, I was "anxious".


Frank, my sympathies that you were forced to go thru such a Farce.. I agree with you 100%, Stay as Far Away from the system as possible.. I once accompanied a good friend to a Mental Group session at one of the large Insurance type hospitals in our area.. I was not allowed to enter the session But sat directly outside the conference room and observed, one participant was disagreeing with the counselor (Not violently, just voicing his opinion) and two large orderlys showed up to drag him off.. 5150? Don't know, Time to Leave Now.....

andytothemax
07-23-2011, 11:56 AM
I don't think that's correct. According to this (http://www.lasuperiorcourt.org/mentalhealth/FacilityBasedHearings.htm), a private attorney may be present, but that of course would be at the patients' own cost, not provided free.

The representative provided free of charge is the Patients' Rights Advocate, which in my experience was a far cry from an attorney. There's no record that my advocate was even present at my hearing, though I admittedly cannot say for certain since the facility sedated me 2 hours before my hearing took place and I thus slept through it. According to what little records exist, I was "anxious".

Whoops, you are correct. In the case I was involved in, the advocate happened to be an attorney. Sorry to hear about your case.