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  1. #71
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    Default Re: Critically important note about PICS and NICS

    Quote Originally Posted by GunLawyer001 View Post
    ...Making mistakes on the 4473 is a victimless crime. Our govt should concentrate on preventing actual victims, not on herding the sheep along arbitrary pathways.
    Seems to me that much like credit bureaus, there should be an option to do a 'soft' pull on PICS and/or NICS. A 'would I qualify if I tried?' type inquiry that returns a "yes" or the reason why not, without the implication of getting busted for 'lying' on a 4473... Heck, I'd even settle for a simple "yes" or "no" and then you have to go find out why if no.

    You'd still have to ink the form to buy a gun, with full penalties for lying (and at that point, more likely ill-intent/deserved).

    It would sure make life easier for FFL's, customers, etc. and avoid the unfortunate situation of folks 'trying it' to find out (as we see here all too often).

    It seems to me there's some level of 'right to know' by the individual too, without risking a criminal offense to find out. I know you can request your 'record' from PSP, but even getting that and seeing an offense doesn't help the average Joe know if many of the most common offenses are disqualifying (as we're asked here all too often).

    It's something folks might even want to check with no intention to buy a gun, just for identity protection. True story: there is someone who lives in the area with my exact (rather unusual) name & spelling. Probably some distant cousin, but I don't know. Might even be a woman who married into the family (the name is pretty gender-neutral, like Sam or Chris). Having said that, I've TWICE been called into the local district magistrate's office to account for my unpaid tickets, and had to point out that it's a different middle initial and SSN they're looking for. It's conceivable one day I could get turned down for PICS based on something they do erroneously entered for me... I'd sooner know that BEFORE I get turned down and PSP comes calling...

    Not to mention letting LEOs get on with pursuing the real baddies versus folks who are asked to fill out a form with possible criminal implications and no real understanding of what's being asked.

    Downsides???

    Only one I can really think of is alluded to above: It would be easier for folks who -are- trying to skirt the law to determine that something's been "missed" and they can slide under the wire. Seems a bit of an outlier to me.
    "Those who would give up essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety" - Ben Franklin.

  2. #72
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    Default Re: Critically important note about PICS and NICS

    Quote Originally Posted by KCJones View Post
    Seems to me that much like credit bureaus, there should be an option to do a 'soft' pull on PICS and/or NICS. A 'would I qualify if I tried?' type inquiry that returns a "yes" or the reason why not, without the implication of getting busted for 'lying' on a 4473... Heck, I'd even settle for a simple "yes" or "no" and then you have to go find out why if no.

    You'd still have to ink the form to buy a gun, with full penalties for lying (and at that point, more likely ill-intent/deserved).

    It would sure make life easier for FFL's, customers, etc. and avoid the unfortunate situation of folks 'trying it' to find out (as we see here all too often).

    It seems to me there's some level of 'right to know' by the individual too, without risking a criminal offense to find out. I know you can request your 'record' from PSP, but even getting that and seeing an offense doesn't help the average Joe know if many of the most common offenses are disqualifying (as we're asked here all too often).

    It's something folks might even want to check with no intention to buy a gun, just for identity protection. True story: there is someone who lives in the area with my exact (rather unusual) name & spelling. Probably some distant cousin, but I don't know. Might even be a woman who married into the family (the name is pretty gender-neutral, like Sam or Chris). Having said that, I've TWICE been called into the local district magistrate's office to account for my unpaid tickets, and had to point out that it's a different middle initial and SSN they're looking for. It's conceivable one day I could get turned down for PICS based on something they do erroneously entered for me... I'd sooner know that BEFORE I get turned down and PSP comes calling...

    Not to mention letting LEOs get on with pursuing the real baddies versus folks who are asked to fill out a form with possible criminal implications and no real understanding of what's being asked.

    Downsides???

    Only one I can really think of is alluded to above: It would be easier for folks who -are- trying to skirt the law to determine that something's been "missed" and they can slide under the wire. Seems a bit of an outlier to me.
    I basically agree with you. The real bad guys who we want to keep separate from weapons, already know that they spent 3 years in prison or were caught dealing drugs or were kicked out of the army for rape. I don't know how big a problem it really is that felons and maniacs would pass PICS because of system errors, but I'd bet money that it's a tiny problem compared to people who were convicted of crimes and spent zero days in jail, but the statute allowed for 5 years; or people whose parents had them examined as teens and are literally unaware that they were 302'ed.

    The only thing that makes sense is that PICS (and NICS) is designed as a trap for the unwary. It's difficult for the layman to know where his criminal records can be found, it's impossible to find 15 year old medical records that have been shredded. Our situation is this: Let's say in 1990 Barry O. is committed to a hospital as a result of a bad drug experience. The hospital sends a 302 form to the PSP. That creates a permanent disability for Barry. But Barry is not represented by counsel, he isn't given any paperwork (or he loses it during the ordeal). The PSP now knows that Barry is prohibited, but Barry does not.

    Time passes. By 1997 or 2000, the hospital shreds Barry's records, per their retention policy. The PSP still has their form.

    In 2018, Barry goes to buy a gun. He doesn't remember being adjudicated mentally ill, because nobody told him that. He didn't have any Cuckoo's Nest experience, no straight jacket, no mute Indians, he just spent a weekend in a hospital 28 years ago while doctors told him reassuring things, and then he went home.

    Let's say he wanted to be proactive; he calls the PSP but they can't legally tell him anything. He calls the hospital and they check their system and there's no reference to him there at all.

    The first direct evidence he has that he was committed is when the PSP (or local cops) call him to tell him why he was denied by PICS, and they're deciding whether to prosecute him.

    Barry should have hired someone like me BEFORE he filled out the form. He sure as hell needs someone like me now, because the reason the LEO is calling him is to trick him into further implicating himself to make a conviction easier. The govt takes the position that every person knows in detail whether they were committed (vs "mom put me in the hospital once when she didn't know what to do", which I've heard many times), and that every person knows the details of the statute under which they were convicted.

    Bear in mind, defense lawyers and prosecutors and judges have frequently (and erroneously) told defendants that their gun rights would not be impacted by a guilty plea. I don't recall ANY hospital telling an incoming patient that they would be losing their gun rights, EVER. But you can and will be criminally prosecuted if YOU get it wrong.

    It's not right. It's not justice.
    Attorney Phil Kline, AKA gunlawyer001@gmail.com
    Free seminar 7/18/19 in Quakertown: https://www.senatormensch.com/concealed-carry-seminar/

  3. #73
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    Default Re: Critically important note about PICS and NICS

    Quote Originally Posted by GunLawyer001 View Post
    ..... I don't recall ANY hospital telling an incoming patient that they would be losing their gun rights, EVER. But you can and will be criminally prosecuted if YOU get it wrong.

    It's not right. It's not justice.
    As usual, you make many great points. Regarding the above sentence, every 302 I have dealt with, the main concern at the moment was the crisis that the person was experiencing. The hospital and the family were usually concerned that the person wouldn’t harm themselves and would be treated and live on. Future gun rights were not a priority at the moment.

    Without successfull treatment at present, there would be no future justice or future anything.

  4. #74
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    Default Re: Critically important note about PICS and NICS

    Quote Originally Posted by Carson View Post
    As usual, you make many great points. Regarding the above sentence, every 302 I have dealt with, the main concern at the moment was the crisis that the person was experiencing. The hospital and the family were usually concerned that the person wouldn’t harm themselves and would be treated and live on. Future gun rights were not a priority at the moment.

    Without successfull treatment at present, there would be no future justice or future anything.
    I agree, and I don't necessarily condemn the 1st responders or the hospital; I'm just saying the patient is given no basis for understanding that he has to change his answer on one question on one form sometime in the future, when he knows he's not one of those "felons and the mentally ill" that our elected officials keep telling everyone the background check is stopping.
    Attorney Phil Kline, AKA gunlawyer001@gmail.com
    Free seminar 7/18/19 in Quakertown: https://www.senatormensch.com/concealed-carry-seminar/

  5. #75
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    Default Re: Critically important note about PICS and NICS

    When the people fear the Government, there is Tyrrany. When the Government FEARS the people, there is Liberty!

  6. #76
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    Default Re: Critically important note about PICS and NICS

    Quote Originally Posted by GunLawyer001 View Post
    We're seeing an increasing number of criminal prosecutions for PICS denials in Pennsylvania, where the State Police are referring close to 100% of all denials for follow-up prosecution.
    If I’m reading this right, the Supreme Court is saying that prosecutors must prove people charged with federal gun laws knew that they were not allowed to have the gun.

    Could this transfer over to people who try to buy a gun, mistakenly fill out the space on the NICS/PICS form saying that they are not prohibited because of a 302 or such and are then denied/prosecuted? Basically will prosecutors now have to prove the person knew they were filling out the form wrong?


    https://fox61.com/2019/06/23/justice...ldnt-have-gun/

    Justices: Proof needed that person knew he couldn’t have gun
    Posted 12:19 PM, June 23, 2019, by Associated Press


    WASHINGTON — The Supreme Court says prosecutors must prove that people charged with violating federal gun laws knew they were not allowed to have a weapon. The government says the decision could affect thousands of prosecutions of convicted criminals who are barred from having a firearm.

    The court ruled 7-2 Friday in the case of a foreign student from the United Arab Emirates who took target practice at a Florida shooting range, even though he had been dismissed from the Florida Institute of Technology and was in the United States illegally. He was prosecuted under a law that bars people who are in the country illegally from having guns.

    Prosecutors never proved that the student, Hamid Rehaif, knew he couldn’t have a gun, and lower courts ruled they didn’t have to.

    The same law is also an important tool to keep guns away from convicted criminals. There were more than 6,000 convictions under the law during the government’s 2017 fiscal year, according to the U.S. Sentencing Commission.

    Justice Stephen Breyer wrote in his majority opinion that the law at issue requires prosecutors to show both that the person had a gun and knew he shouldn’t.

    Otherwise, Breyer said, the law could ensnare someone “brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status.”

    Justice Samuel Alito wrote in a dissent that was joined by Justice Clarence Thomas that the decision “opens the gates to a flood of litigation that is sure to burden the lower courts.”

    The gun violence prevention group Everytown for Gun Safety had joined the Trump administration in urging the court to reject Rehaif’s arguments.

    “We are concerned today’s ruling will make it harder for law enforcement to impose accountability when people keep or acquire guns they’re legally barred from possessing, including due to felony and domestic violence convictions,” said Eric Tirschwell, Everytown’s litigation director.

    Rehaif was sentenced to 18 months in prison.

    Friday’s decision may not be the last word in his case. Lower courts will take a new look at its details, including the school’s telling him his student visa would no longer be valid unless he transferred to another school. Prosecutors say Rehaif ignored the warning and instead spent months at a hotel in Melbourne, Florida, never re-enrolling in school.
    Last edited by internet troll; June 23rd, 2019 at 10:07 PM.
    Proof Armed citizens make a difference. http://forum.pafoa.org/showthread.php?t=316012

  7. #77
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    Default Re: Critically important note about PICS and NICS

    Quote Originally Posted by internet troll View Post
    If I’m reading this right, the Supreme Court is saying that prosecutors must prove people charged with federal gun laws knew that they were not allowed to have the gun.

    Could this transfer over to people who try to buy a gun, mistakenly fill out the space on the NICS/PICS form saying that they are not prohibited because of a 302 or such and are then denied/prosecuted? Basically will prosecutors now have to prove the person knew they were filling out the form wrong?
    . . .
    I thought about that as well. But the 4473 doesn't ask if you're prohibited, it asks a series of factual and legal questions, and if you get one wrong then they prosecute you for willfully lying. If you are mistaken about the maximum sentence under the statute at the time, they get you for "lying". They have to prove that you probably knew the truth, but chose to lie. In practice, the DA assumes that your error as to the legal conclusion equates to a factual misrepresentation.

    If you were booted out of the Army with a dishonorable discharge, you probably know that. If you were dragged through the kaleidoscope of the legal system and walked out with no jail time and a small fine and some probation, there's a solid chance that you were unaware of the theoretical max sentence; that's not really a fact question, that's a legal conclusion, and figuring out the max sentence for a DUI requires reviewing the specifics of each case, reviewing the multiple interlocking paragraphs of the statute in the Vehicle Code, then jumping over to the Crimes Code to figure out what an M1 and M2 and M3 mean. Easy enough for a lawyer, not so easy for a plumber.

    I have a spread sheet to factor in whether it's a 1st or 2nd or 3rd offense, what the blood alcohol level was, who was injured, whether a school bus was involved, etc. It also helps to understand when a prior non-conviction counts as a prior "offense", because it's perfectly possible for your first conviction to be a 3rd offense, which radically changes the max penalty.

    Our drug statute is almost impenetrable.

    Prosecution for lying on a form is distinguishable from the situation where someone gets a gun in his hand, and breaks the law by his act.

    There are parallels, but the mechanics are very different.

    Still, it's an interesting acknowledgement that it's unfair to presumptively assume that every person is fully aware of every provision of the Federal and state criminal codes, given that NOBODY is fully aware of every provision of every law to which they are subject. You can't be. There's just too much law, too many words, it changes every day, and the applicable court decisions and agency rulings that substantively alter the law multiply that enormous volume at least 10 times.

    You could memorize the Federal gun statutes and still be unaware that a front grip on a pistol makes it an NFA firearm, or what counts as a machinegun these days. I can confidently say that no lawyer, no judge, no idiot savant knows it all. It's about time that a court noticed reality.
    Attorney Phil Kline, AKA gunlawyer001@gmail.com
    Free seminar 7/18/19 in Quakertown: https://www.senatormensch.com/concealed-carry-seminar/

  8. #78
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    Default Re: Critically important note about PICS and NICS

    Thanks for the input.

    Quote Originally Posted by GunLawyer001 View Post
    I thought about that as well. But the 4473 doesn't ask if you're prohibited, it asks a series of factual and legal questions, and if you get one wrong then they prosecute you for willfully lying. If you are mistaken about the maximum sentence under the statute at the time, they get you for "lying". They have to prove that you probably knew the truth, but chose to lie. In practice, the DA assumes that your error as to the legal conclusion equates to a factual misrepresentation.

    If you were booted out of the Army with a dishonorable discharge, you probably know that. If you were dragged through the kaleidoscope of the legal system and walked out with no jail time and a small fine and some probation, there's a solid chance that you were unaware of the theoretical max sentence; that's not really a fact question, that's a legal conclusion, and figuring out the max sentence for a DUI requires reviewing the specifics of each case, reviewing the multiple interlocking paragraphs of the statute in the Vehicle Code, then jumping over to the Crimes Code to figure out what an M1 and M2 and M3 mean. Easy enough for a lawyer, not so easy for a plumber.

    I have a spread sheet to factor in whether it's a 1st or 2nd or 3rd offense, what the blood alcohol level was, who was injured, whether a school bus was involved, etc. It also helps to understand when a prior non-conviction counts as a prior "offense", because it's perfectly possible for your first conviction to be a 3rd offense, which radically changes the max penalty.

    Our drug statute is almost impenetrable.

    Prosecution for lying on a form is distinguishable from the situation where someone gets a gun in his hand, and breaks the law by his act.

    There are parallels, but the mechanics are very different.

    Still, it's an interesting acknowledgement that it's unfair to presumptively assume that every person is fully aware of every provision of the Federal and state criminal codes, given that NOBODY is fully aware of every provision of every law to which they are subject. You can't be. There's just too much law, too many words, it changes every day, and the applicable court decisions and agency rulings that substantively alter the law multiply that enormous volume at least 10 times.

    You could memorize the Federal gun statutes and still be unaware that a front grip on a pistol makes it an NFA firearm, or what counts as a machinegun these days. I can confidently say that no lawyer, no judge, no idiot savant knows it all. It's about time that a court noticed reality.
    Proof Armed citizens make a difference. http://forum.pafoa.org/showthread.php?t=316012

  9. #79
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    Default Re: Critically important note about PICS and NICS

    Quote Originally Posted by Carson View Post
    As usual, you make many great points. Regarding the above sentence, every 302 I have dealt with, the main concern at the moment was the crisis that the person was experiencing. The hospital and the family were usually concerned that the person wouldn’t harm themselves and would be treated and live on. Future gun rights were not a priority at the moment.

    Without successfull treatment at present, there would be no future justice or future anything.
    I've seen very expensive IVY league schools try and 302 kids who, as far as I could tell had no evidence of being a danger to themselves or others, just stressed from finials or whatever. Much to the distress of the school staff, I've in front of them & the cops, told those kids as much, and explained to the best of my limited knowledge what a 302 would do to their lives. I've made it clear they're going to the hospital willingly or not, that they're screwed, and the absolutely best thing they can do is say "I'm going willingly and want help" regardless of the truth of their status or if they need it.

    One of the greatest joys I've ever seen involved a 302 of a person who was most likely suicidal. Same school started the process, but the mental heath worker wouldn't come to the hospital. ER physician refused to sign the 302, as he had no personal evidence of PT being suicidal. PT had denied it to me, the nurses & himself. He explained this to the mental health worker and said I quote: "There is no due process, and I will not be judge, jury and executioner & ruin this girls life. You need to come do your job."

    PT had reported it to a friend, who had accompanied us, but when the mental health worker suggested the friend fill out the 302 he started screaming at the lady on the phone, and told her she had half an hour to be in his ER or he was going to meet with the dean of the college and report her to the State Ethics board, and that he would not put her friend in that position.

    IT was amazing. Sadly there are few physicians with his character.
    "Cives Arma Ferant"

    "I know I'm not James Bond, that's why I don't keep a loaded gun under the pillow, or bang Russian spies on a regular basis." - GunLawyer001

  10. #80
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    Default Re: Critically important note about PICS and NICS

    Quote Originally Posted by internet troll View Post
    If I’m reading this right, the Supreme Court is saying that prosecutors must prove people charged with federal gun laws knew that they were not allowed to have the gun....
    I wonder if the ruling would have been different if the defendant wasn't an undocumented dreamer?

    Dissaponting that two of the most conservative justices were the dissenting opinion.

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