Tyler v. Hillsdale County Sheriff’s Dep’t (6th Cir. Dec. 18, 2014) Mental disability

[wireless]

So you are now a 5150 on paper?

[shda5582]

Originally Posted by wireless

So you are now a 5150 on paper?

At this point, I'm honestly not 100% sure. The initial intake was for a 5150, but I've gotten no notice from DOJ stating that I am and am now required to turn over all firearms. However, I was held additionally for the 5250, but the doctor had no basis for doing so, and was even told as such by the judge that decided the corpus filing in my favor (which, if I understand the law correctly SHOULD throw out at least the 5250 against me for the Federal and it just leaves me having to fight the State 5150 which is far easier since the State has to prove I should not have my 2a Right and I have a whole host of people willing to testify on my behalf).

There's a whole lot of other factors at play too:

- Second (and THIRD) opinion doctor had saw no reason to keep me for such a long period of time on the 5250, but would not invalidate the 5250.

- The 5250 hearing judge failed to overturn it solely based on the original reason that brought me there, NOT due to a failure of treatment/my getting better. The judge that heard my writ petition and found in my favor had even stated they had no evidence/cause to hold me, which makes me wonder if the 5250 charge is invalidated. A question for my attorney, at which I'll provide an answer here assuming that it's OK with them.

- I was told by my treating doc that she would not sign off on my release order unless I agreed to accept anti-psychotic medications (illegal) (which given that I was there for a suicide attempt is a HUGE overreaction, AND a violation of my patient rights to choose my own treatment unless judged mentally deficient, at no point was I ever) or anti-depressant medications. Given that some of them COULD cause an increase in suicidal thoughts/behavior I did not want to risk that happening so *points above* I exercised my right to not take it.

- We were told that average stay at that facility is average 5-7 days, which means they automatically 5250 you without psychologist evaluation. Which is illegal and a violation of state law.

- I was not put on suicide watch/restraint. If I was such a danger to myself that I could not be released, then more extreme measures should have been taken to ensure my safety. None of which were.

Basically, I got screwed because of the really crap facility I got sent to but I am going to fight this with everything I have and any resource I can get my hands on.

[press1280]

6th Circuit just granted en banc http://www.ca6.uscourts.gov/opinions...4a0296o-06.pdf
So the Circuits have now jettisoned two opinions that call out Kachalsky/Drake/Woollard. It really seems like our judiciary wants to strangle the 2A in the cradle.

[wireless]

Ahhhh!

[rlc2]

Originally Posted by press1280

6th Circuit just granted en banc http://www.ca6.uscourts.gov/opinions...4a0296o-06.pdf
So the Circuits have now jettisoned two opinions that call out Kachalsky/Drake/Woollard. It really seems like our judiciary wants to strangle the 2A in the cradle.

Whoa, Press. No need to go full KC negative here....

Here its just a majority of judges in the 6th voting for full en banc, to rehear the limited 3 judge decision.
The actual decision on the full en banc has not been made.
It could simply be that on philosophical principles enough judges felt it needed a wider look, an opportunity for others to weigh in?

One might even speculate that one or two pro-2A judges voted with the anti-2A judges thinking the vote to rehear was inevitable and more exposure would benefit the pro-2A conversation nationally (getting the "strict scrutiny only" rationale of Judge Boggs decision out in a wider sphere is worth it, to me). I read a couple of reviews of en bancs in 2012 and 2014 in the Michigan ABA review, where the author makes the point that the 6th only had 4 en bancs in each of those years, and highlights the federal appellate rules "that en banc should only be requested for cases of exceptional national importance".

On the other hand, a writer at Volokh notes: "The U.S. Court of Appeals for the Sixth Circuit has a reputation for being one of the most divided and contentious courts in the nation. Many of the courts divided opinions have been chronicled on this blog. But it’s important not to overstate the degree of division on the court."

http://volokh.com/2012/03/07/unanimo...sixth-circuit/

So perhaps if Tyler is as consequential as it appears, then its just common sense it would be expected to go to full en banc, just so one or two dissenters could take issue with Judge Boggs scrutiny descriptions....

Either way- Tyler was going to need to go to SCOTUS anyway, right? Sucks for Mr Tyler, but think about the implications for all the folks like the poster above, stuck in limbo land in states like CA, with no funding for restoration of 2A rights by BATFE, unless forced by litigation on the CA DOJ.

And just wait for all the divorce cases to come, abusing the GRVOs...
http://time.com/3450797/california-g...ing-order-law/

[wildhawker]

No, read the order. The panel decision is vapor wear.

[rlc2]

Originally Posted by wildhawker

No, read the order. The panel decision is vapor wear.

Sorry, Brandon, are you replying to me?
Not sure what you mean-
IANAL so I can only go by what I find on wiki, etc-

https://en.wikipedia.org/wiki/En_banc

where it "says each CA has its own rules".

By the order in the link above:

"Sixth Circuit Rule 35(b) provides as follows: The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal.”

So, it appears to me that vacating is the normal procedure for en banc rehearing. Which sux but makes sense administratively.

Am I missing something?

PS: this may also answer a question I asked elsewhere about Peruta- is depublishing the opinion of the 3 judge panel the normal routine for the 9th, or not?

[lowimpactuser]

Originally Posted by rlc2

Sorry, Brandon, are you replying to me?
Not sure what you mean-
IANAL so I can only go by what I find on wiki, etc-

https://en.wikipedia.org/wiki/En_banc

where it "says each CA has its own rules".

By the order in the link above:

"Sixth Circuit Rule 35(b) provides as follows: The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal.”

So, it appears to me that vacating is the normal procedure for en banc rehearing. Which sux but makes sense administratively.

Am I missing something?

PS: this may also answer a question I asked elsewhere about Peruta- is depublishing the opinion of the 3 judge panel the normal routine for the 9th, or not?

To go full KC on you:

What benefit to OUR SIDE does vacating AND taking en banc a pro-2A decision give?

The jurisdiction of the decision doesn't change. No possibility of extending the right.

It doesn't create a stronger precedent that is harder to overturn

It lengthens the time without rights for various citizens including the plaintiff, AND increases the difficulty of going before the Supreme Court, if the widely believed "state appealing decision = higher Cert grant rate"

So why exactly would anyone PRO-2A vote for a rehearing?

[shda5582]

Originally Posted by lowimpactuser

To go full KC on you:

What benefit to OUR SIDE does vacating AND taking en banc a pro-2A decision give?

The jurisdiction of the decision doesn't change. No possibility of extending the right.

It doesn't create a stronger precedent that is harder to overturn

It lengthens the time without rights for various citizens including the plaintiff, AND increases the difficulty of going before the Supreme Court, if the widely believed "state appealing decision = higher Cert grant rate"

So why exactly would anyone PRO-2A vote for a rehearing?

Actually this is a good thing in the long run if it goes en banc and not appealed to SCOTUS or SCOTUS declines to hear it. Since my own (as of yet not-filed) case is very similar to what's going on with Tyler and since I would have such overwhelming evidence to argue a favorable resolution in my case....when mine gets to the 9th on appeal eventually (and it will), SCOTUS will HAVE to take my case up to resolve a circuit court split.

Of course, this all might be moot if the Federal stuff gets tossed straight away which (given my situation) very well might.

[lowimpactuser]

Originally Posted by shda5582

Actually this is a good thing in the long run if it goes en banc and not appealed to SCOTUS or SCOTUS declines to hear it. Since my own (as of yet not-filed) case is very similar to what's going on with Tyler and since I would have such overwhelming evidence to argue a favorable resolution in my case....when mine gets to the 9th on appeal eventually (and it will), SCOTUS will HAVE to take my case up to resolve a circuit court split.

Of course, this all might be moot if the Federal stuff gets tossed straight away which (given my situation) very well might.

Without having read up on your situation...

What if the 9th rules in your favor and the state abandons it instead of en banc/SCOTUS appeal?

There is an order FORCING SCOTUS to take your case? I know of nothing that compels SCOTUS to hear anything they don't want to.

Not saying you don't have merits, but to act like facts alone are sufficient for cert grant is...

[shda5582]

Originally Posted by lowimpactuser

Without having read up on your situation...

What if the 9th rules in your favor and the state abandons it instead of en banc/SCOTUS appeal?

There is an order FORCING SCOTUS to take your case? I know of nothing that compels SCOTUS to hear anything they don't want to.

Not saying you don't have merits, but to act like facts alone are sufficient for cert grant is...

I haven't yet filed case since I haven't yet even done the 5150 appeal. Waiting 2 years on advice of my lawyer, since I only get one chance.

Now, if my case even goes to the 9th AND the case was decided in my favor and Tyler wasn't AND assuming it would be appealed (I'm positive it would be)....that would lend ammunition (no pun) to SCOTUS taking the case to resolve what would be a circuit split since my and Tyler's cases are essentially identical and involving the same bit of federal law, yet having such different decisions.

Difference is is that I had filed and had upheld a habeus corpus writ that challenged the 5250 so in theory it SHOULD have negated the 5250 under the NICS Amendment of 2007.

[press1280]

En banc oral arguments on October 14th at 2PM EST. Look here for audio http://www.ca6.uscourts.gov/internet...audio/aud1.php

[wireless]

Who are the judges sitting on the panel?

I think this one is an easy win for us. The fact that we might lose the strictly scrutiny is a shame. I'm betting they will if they vote for en banc. Best case scenario SCOTUS takes the case after government loses en banc.

[press1280]

Originally Posted by wireless

Who are the judges sitting on the panel?

I think this one is an easy win for us. The fact that we might lose the strictly scrutiny is a shame. I'm betting they will if they vote for en banc. Best case scenario SCOTUS takes the case after government loses en banc.

ALL the 6th circuit judges plus the senior judge on the original panel (unless someone has recused themselves). I don't see it as an easy win, in fact the vote for en banc seems to point to a loss. What kills me is all the great the things from the 3 judge panel (the bashing of Drake, Kachalsky, and Woollard opinions for one) will probably not resurface in the en banc opinion, win or lose. IMO that was bigger than the actual holding itself, which really doesn't affect many people.

[Paladin]

Originally Posted by press1280

En banc oral arguments on October 14th at 2PM EST.

[shda5582]

Originally Posted by Paladin

I just checked in PACER; nothing since Oct 13 last year. Odd.

[wireless]

Yeah, I've been checking on this one a couple times a week. At 8 months we are probably any day-6 months out at the most. I have a feeling it'll be sooner than later since it's the 6th circuit.

[wireless]

Kind of a win

[shda5582]

Originally Posted by wireless

Kind of a win

Well, THAT'S interesting.

[wireless]

Basically they said the ban is unconstitutional, but it doesn't pass intermediate scrutiny either. To me it's interesting because it's a court applying intermediate scrutiny honestly rather than using rational basis they pretend is "intermediate scrutiny". If the courts honestly applied intermediate scrutiny as they did in this case; AR15/AWB, 10 day waiting periods, "safe handgun" rosters, and most of the other BS wouldn't stand.

At least that's the way I understood the ruling. Very long opinion with lots of different responses.

[shda5582]

Originally Posted by wireless

Basically they said the ban is unconstitutional, but it doesn't pass intermediate scrutiny either. To me it's interesting because it's a court applying intermediate scrutiny honestly rather than using rational basis they pretend is "intermediate scrutiny". If the courts honestly applied intermediate scrutiny as they did in this case; AR15/AWB, 10 day waiting periods, "safe handgun" rosters, and most of the other BS wouldn't stand.

At least that's the way I understood the ruling. Very long opinion with lots of different responses.

Pretty much how I took it as well.

I wonder if it could be used to overthrow the 5150/5250 laws here in California?

[wireless]

Originally Posted by shda5582

Pretty much how I took it as well.

I wonder if it could be used to overthrow the 5150/5250 laws here in California?

5150 is a 5 year ban so it would probably stand.
5250 probably wouldn't because it triggers a lifetime ban with no reasonable path to have rights restored.

[Paladin]

Originally Posted by wireless

Kind of a win

It has been over 90 days and I do not see an entry on SCOTUS' docket for this case when searching either Tyler (https://www.supremecourt.gov/search....-Court=Dockets) or Hillsdale (https://www.supremecourt.gov/search....-Court=Dockets).

Did the antis roll over? Are they going to take their lumps and go to trial?

[wireless]

I'm betting they do not appeal to SCOTUS.

[TheMan76]

None of these laws really apply effectively as its not only unconstitutional under the 2nd amendment, you have a human rights violation in regards to being able to protect your person in a conflict where you are in a state of fear of imminent death by acts or threatened acts by an attacker. You can effectively violate any 5250 ban at the Federal or state level to defend yourself against an attacker. Also the state doesn't enforce the federal ban, which is a states rights barrier just like the federal government can't enforce Federal illegal substance laws to override California state statutes that allow marijuana production legally. If we ever use Federal law to override marijuana statutes in California, then we can extend this theory to 5250 override, but its unlikely as the civil war was over states rights violations and taking gun rights away will likely lead to one.

The other issue is the 5250 gun ban doesn't effectively protect people. We have seen many mass shooters take out folks without 5250 gun bans. The other problem is if you had a seizure and it went away or you were treated you now live in fear of the guy next door with the AR-15 who got it illegally. The problem is the 5250 theory assumes that the law is effectively followed by those around you. The game theory says its not and we have evidence that it isn't as hedonics overrides law, when in a state of fear for your life. Technically you can't have possession of a fire arm under federal law with a 5250, but you can walk into a 7-11 with a cop who has one on his belt. So you effectively can walk into a gun store or go shoot a pellet gun at a gun range. You can also buy a crossbow or high poundage compound bow which is just as effective as a rifle with a 5250. Hand guns only work at close range, so in your home you use a tactical knife and learn some martial arts. I kind of use the analogy of the movie The Accountant. The Accountant doesn't need to carry a fire arm as there is one next door you can take from someone with your martial arts skills. There are as many guns in the USA as there are adults, so your neighbor can arm you in a dispute if there is an attack on your neighborhood. Your neighbor can also buy one for you and store it for you.

[wooshoo650]

has there been any update to this case?

[Paladin]

Originally Posted by wooshoo650

has there been any update to this case?

[ke6guj]

I seem to recall an attorney (Michel, Guru, etc) posting on Facebook in the last week or so that his plantiff decided to drop his appeal of a case due to his advanced age (77) and declining health. I think it was this case, but I can't find it anymore on Facebook.

[ke6guj]

Originally Posted by ke6guj

I seem to recall an attorney (Michel, Guru, etc) posting on Facebook in the last week or so that his plantiff decided to drop his appeal of a case due to his advanced age (77) and declining health. I think it was this case, but I can't find it anymore on Facebook.

ok, found it.

Davis Law Firm posted this on August 15.

Regarding Tyler v. Hillsdale and 5250 Restoration of Rights:
Tyler v. Hillsdale is a case that involved a gentleman by the name of Clifford Tyler, who was deemed prohibited from possessing firearms for the rest of his life due to his two week commitment in a mental health hospital after suffering a "brief reactive depression episode" 23 years ago when he was getting divorced.
Unable to restore his rights due to congress' prohibition on the use of funding by the federal government for their existing restoration of rights program and a lack of a state procedure to restore his firearm rights, Tyler sued claiming that the lifetime prohibition violated the Second Amendment.
After years of making its way through the courts, the En Banc Court held that "Tyler has a viable claim under the Second Amendment and that the government has NOT justified a LIFETIME ban on gun possession by anyone who has been “adjudicated as a mental defective” or “committed to a mental institution,” 18 U.S.C. § 922(g)(4)." BUT, because of the plurality of decisions in the ruling, the court thought it would be wise to send the matter back down to the District Court to determine the constitutionality of the prohibition using Intermediate Scrutiny.
Last week, the case took an unfortunate turn for Mr. Tyler. At 76 years old, having dealt with the stresses of this litigation for the last five years, and having deteriorated in his physical health, he decided that it was in the best interest for the quality of his life to dismiss the matter.
Many of us were watching this case carefully and believe that it pursued a worthy cause. The case clarified that the government could not justify a blanket lifetime ban for mental health issues - but did not finish the job of obtaining relief for those who have recovered. This dismissal means that another case will have to ultimately bear the burden of challenging the lifetime ban provision. Regardless, Mr. Tyler set the path for such a challenge, and for that we thank him! We wish you well Mr. Tyler!

[pacrat]

Last week, the case took an unfortunate turn for Mr. Tyler. At 76 years old, having dealt with the stresses of this litigation for the last five years, and having deteriorated in his physical health, he decided that it was in the best interest for the quality of his life to dismiss the matter.
Many of us were watching this case carefully and believe that it pursued a worthy cause. The case clarified that the government could not justify a blanket lifetime ban for mental health issues - but did not finish the job of obtaining relief for those who have recovered. This dismissal means that another case will have to ultimately bear the burden of challenging the lifetime ban provision. Regardless, Mr. Tyler set the path for such a challenge, and for that we thank him! We wish you well Mr. Tyler!

Example, in Peruta v Gore. After HIS loss, good ole Shoot to Kill Bill. Did not appeal. Kamaltoes stepped in and took over as "defendant".

Is this 'only" allowed for the state to do?

Can another "plaintiff" with standing, step in and continue the fight?

Is this just another way that the judicial system is stacked in favor of the state?

[press1280]

Originally Posted by pacrat

Example, in Peruta v Gore. After HIS loss, good ole Shoot to Kill Bill. Did not appeal. Kamaltoes stepped in and took over as "defendant".

Is this 'only" allowed for the state to do?

Can another "plaintiff" with standing, step in and continue the fight?

Is this just another way that the judicial system is stacked in favor of the state?

I believe he was the sole plaintiff, so the case dies along with him. However, he won a judgment from an en banc panel that essentially said a person in his predicament can challenge the law(government was trying to hold that felons and others are completely outside the right no matter what).
Another plaintiff will come along and be able to somewhat pick up where Tyler left off.

[pacrat]

Originally Posted by press1280

I believe he was the sole plaintiff, so the case dies along with him. However, he won a judgment from an en banc panel that essentially said a person in his predicament can challenge the law(government was trying to hold that felons and others are completely outside the right no matter what).
Another plaintiff will come along and be able to somewhat pick up where Tyler left off.

WELL POOP!

[press1280]

Originally Posted by pacrat

WELL POOP!

No worries, Mr Tyler did the heavy lifting and now we have good Case law.