Improvements to NICS statute

[PeteG]

In January, Congress passed the "NICS Improvement Amendments Act." It is a LONG statute, designed to address a lot of problems that existed with the NICS system.

Among the important provisions are a requirement that states establish a program for relief from legal disabilities imposed under the prior law (meaning reinstatement of gun rights), for some people under some circumstances.

I have done a number of cases for people who have been denied approval under the NICS system due to errors in the records, or incomplete information in the records (which the PA State Police presume to be unfavorable to the applicant unless the applicant can get complete information and prove it to the Pa. State Police). Unfortunately, this is an expensive process, and a number of people who have come to me for help simply could not afford it.

The new statute now provides for an attorney fee award to anyone who is denied relief from a disability founded upon thier actual or alleged mental health history (e.g., a committment to a mental health facility), and who later proves in court they were wrongly subjected to the disability. The statutory language is as follows:

“(A) Program for relief from disabilities.--
“(i) In general.--Each department or agency of the United States that makes any adjudication related to the mental health of a person or imposes any commitment to a mental institution, as described in subsection (d)(4) and (g)(4) of section 922 of title 18, United States Code [subsecs. (d)(4) and (g)(4) of this section], shall establish, not later than 120 days after the date of enactment of this Act [Jan. 8, 2008], a program that permits such a person to apply for relief from the disabilities imposed by such subsections.
“(ii) Process.--Each application for relief submitted under the program required by this subparagraph shall be processed not later than 365 days after the receipt of the application. If a Federal department or agency fails to resolve an application for relief within 365 days for any reason, including a lack of appropriated funds, the department or agency shall be deemed for all purposes to have denied such request for relief without cause. Judicial review of any petitions brought under this clause shall be de novo.
“(iii) Judicial review.--Relief and judicial review with respect to the program required by this subparagraph shall be available according to the standards prescribed in section 925(c) of title 18, United States Code. 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.

Although this appears to be limited to adjudications related to mental health, and although the Congress seeks to limit the fees recoverable to those awarded to "public interest or legal aid organizations" [what's with that?], at least a person wrongly denied the ability to purchase a gun on mental health grounds can recover SOME of their legal fees and costs.

[RugerNiner]

This "improvement" will prevent 33 % of our Armed Forces from owning guns after they leave the Service due to Post Traumatic Stress Disorders (PTSD).

Courtesy of the NRA and Brady bunch.

[normanvin]

This "improvement" will prevent 33 % of our Armed Forces from owning guns after they leave the Service due to Post Traumatic Stress Disorders (PTSD).

go figure. they are just trying to keep whittling the numbers down until none remain.

[GunLawyer001]

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.[/COLOR]

Although this appears to be limited to adjudications related to mental health, and although the Congress seeks to limit the fees recoverable to those awarded to "public interest or legal aid organizations" [what's with that?], at least a person wrongly denied the ability to purchase a gun on mental health grounds can recover SOME of their legal fees and costs.

It looks to me like the amount of the fee is capped at what courts award to "public interest legal aid organizations in the relevant community", but the attorney can be anyone. Since attorney fees can be anywhere from $100 to $1,000 per hour, it's not reasonable to allow any attorney to bill anything he wants and have the taxpayers foot the bill.
I wouldn't take such a case on a contingent fee basis anyway, so the money would be going to the client. No lawyer who has to feed himself and his family will take a case where the payment will be capped at his normal hourly rate, and may not come at all. I don't know anyone who would go to work, knowing that his hourly pay at the end of the week will be based on a roll of the dice, and will be either zero or his normal weekly wage.

[PeteG]

This "improvement" will prevent 33 % of our Armed Forces from owning guns after they leave the Service due to Post Traumatic Stress Disorders (PTSD).

Courtesy of the NRA and Brady bunch.

How does that work?

Do we have one-third of our armed forces being committed to mental health institutions?

[PeteG]

It looks to me like the amount of the fee is capped at what courts award to "public interest legal aid organizations in the relevant community", but the attorney can be anyone. Since attorney fees can be anywhere from $100 to $1,000 per hour, it's not reasonable to allow any attorney to bill anything he wants and have the taxpayers foot the bill.
I wouldn't take such a case on a contingent fee basis anyway, so the money would be going to the client. No lawyer who has to feed himself and his family will take a case where the payment will be capped at his normal hourly rate, and may not come at all. I don't know anyone who would go to work, knowing that his hourly pay at the end of the week will be based on a roll of the dice, and will be either zero or his normal weekly wage.

I think it's perfectly reasonable to allow a person who is wrongly disenfranchised to expect the government to pay their legal fees to set things right. I also think it's reasonable for that individual to be able to pick the best attorney they can find, and not be limited to those attorneys who cannot command at least the going hourly rate.

Keep in mind, they only collect if they WIN. And the government can limit the fees it pays by backing off at any point along the way it may become apparent the government is in the wrong. As things now stand, they tend to dig their heels in, and litigate until the cows come home, because the government decision-makers are not playing with their own money, and they know the citizen is. Even if they lose, they don't pay out of thier own pocket. This has the effect of protracting litigation which could and should be settled much earlier.

The fee recovery provision will not make the citizen whole, but it will allow recovery of some portion of the money he should never have had to lay out in the first place.

[ReefBlue]

How does that work?

Do we have one-third of our armed forces being committed to mental health institutions?

They can be found to be mentally defective. A PTSD finding in a medical report would be how that would work.

You don't need to actually be committed to a mental institution.

[PeteG]

They can be found to be mentally defective. A PTSD finding in a medical report would be how that would work.

You don't need to actually be committed to a mental institution.

Section 922(g)(4) refers to one "who has been adjudicated as a mental defective or who has been committed to a mental institution." This requires and adjudication or a committment. An opinion expressed in a "medical report" would not be sufficient to disqualify one from owning a firearm.

I would be surprised to learn that one-third of our dischaged veterans had been adjudicated mentally defective, or committed to a mental institution for PTSD.

In any case, the amendment is not what has created the disability. The disability is created in Section 922(g)(4), which has been the law for years. This section, for the first time, mandates that there be a FUNDED process for review of such a finding, a DEADLINE for acting (365 days), and jurisdiciton in a federal court to challenge the agency's action.

I'm not sure why the Brady Bunch would be in favor of any of that. I do know the NRA is taking credit for getting this law enacted.

[RugerNiner]

From GUN OWNERS OF AMERICA;

http://www.gunowners.org/a010808.htm

[PeteG]

From GUN OWNERS OF AMERICA;

http://www.gunowners.org/a010808.htm

Well, that's some interesting spin. Unfortunately, it does not square with the language of the statute.

I expect it was followed with "send money to help us fight this travesty."

"How many veterans suffering from PTSD simply went to Veterans Affairs, hoping to get treatment, but now face a lifetime gun ban because of the new law?"

A: Only those who were committed or who were adjudicated mentally defective. How many is that? It is certainly not everyone who ever sought treatment for PTSD; and not 1/3 of all returning vets.

Of those who were adjudicated, they now have a procedure through which they can now have that finding reversed. they did not have that before.

But, it is what it is ...