How did they pass NICS and not PICS

[Xringshooter]

The PICS uses the NICS as part of their check. In PA, IIRC if you were found guilty of a crime that could have resulted in 1 year or more in jail, no matter what the actual sentance was (could have been probation) you are ineligible to purchase guns and probably would be denied a LTCF. The Form 4473, block 11b, and 11c both address this also. Block 11b asks if you are under indictment for a felony, 11c asks if you have been convicted of a felony and both deal with imprisonment of 1 year or more (again it comes into play not what the actual sentence was but what COULD it have been). In PA you can also get sent to jail for certain misdemeaners which can prohibit you for gun purchases.

[NineseveN]

PICS is more stringent and thus harder to pass. In addition to what's already been mentioned in this thread, the ATF and NICS don't consider a section 302 commitment a prohibiting factor because the ATF has ruled there is no "due process", while PICS will deny for a 302 commitment.

[skyjerk]

PICS is more stringent and thus harder to pass. In addition to what's already been mentioned in this thread, the ATF and NICS don't consider a section 302 commitment a prohibiting factor because the ATF has ruled there is no "due process", while PICS will deny for a 302 commitment.

Are you certain of that? Becoming prohibited due to a 302 is almost universal (I thought) in every state and some states dont have their own instant check system. (I thought)
If those states use NICS and NICS doesnt prohibit you, does that mean that people who have been involuntarily committed (specifically on a 302) in those states do not lose their firearms privileges?
Do they even have a "302" in other states?

[NineseveN]

I'm talking about a "302" in PA only, they call it a "302" because it's section 302 of a PA statue; I have no idea what they have elsewhere.

A 302 commitment is not an ajudication, which is what Federal law (NICS) considers a disqualifying factor in terms of metal health reasons. No due process = no prohibiting factor (at least for now).

As far as how sure I am of that, I'm 100% sure unless something has changed to Pennsylvania law that requires ajudication for a 302 commitment.

[knight0334]

The PICS uses the NICS as part of their check. In PA, IIRC if you were found guilty of a crime that could have resulted in 1 year or more in jail, no matter what the actual sentance was (could have been probation) you are ineligible to purchase guns and probably would be denied a LTCF. The Form 4473, block 11b, and 11c both address this also. Block 11b asks if you are under indictment for a felony, 11c asks if you have been convicted of a felony and both deal with imprisonment of 1 year or more (again it comes into play not what the actual sentence was but what COULD it have been). In PA you can also get sent to jail for certain misdemeaners which can prohibit you for gun purchases.

If I remember correctly - it is Federal misdemeanors of 1 year or more, State misdemeanors of 2 years or more, any misdemeanor drug violation, and/or certain misdemeanor crimes of violence when it comes down to prohibition due to misdemeanors.

I think federal law specifically states "Federal misdemeanor" for the 1 year sentence. And that PA's state law says misdemeanors of 2 years.

[Intrigue]

In order to be DQ'd due to a 302, you must appear before a judge.

If I go to the hospital, and BS them and tell them you have been suicidal, and they issue a 302 Warrant, cops come and take you to the hospital, and you go through an evaluation, you will be found OK and sent on your way.

At this point you are not disqualified.

However, if the shrink thinks you are suicidal or an immediate danger to yourself or others, you will go before a judge, and he/she will decide if you are to be committed involuntarily to an institution.

No judge = Ok to purchase. Judge's decision = you are fooked.

That sounds like due process to me?

[knight0334]

In order to be DQ'd due to a 302, you must appear before a judge.

If I go to the hospital, and BS them and tell them you have been suicidal, and they issue a 302 Warrant, cops come and take you to the hospital, and you go through an evaluation, you will be found OK and sent on your way.

At this point you are not disqualified.

However, if the shrink thinks you are suicidal or an immediate danger to yourself or others, you will go before a judge, and he/she will decide if you are to be committed involuntarily to an institution.

No judge = Ok to purchase. Judge's decision = you are fooked.

That sounds like due process to me?

Thats how I understood it too. 302's required a judgment, 303's were instant DQ's.

If the 302 process is how you just described - there is due process in it and reasonably fair.

[X-Man]

I would like to learn more about the NICS. I'm preparing to submit my application for a renewal of a expired Penna. LTCF, but a question has arisen. So I need to read up on NICS. Have no problem with PICS, though. P.S.: The people at the Bucks County Sheriff Office were extremely helpful, we both want to have the required information assembled before I submit the app. Does anyone have a suggestion on a link to NICS?

[NineseveN]

I would like to learn more about the NICS. I'm preparing to submit my application for a renewal of a expired Penna. LTCF, but a question has arisen. So I need to read up on NICS. Have no problem with PICS, though. P.S.: The people at the Bucks County Sheriff Office were extremely helpful, we both want to have the required information assembled before I submit the app. Does anyone have a suggestion on a link to NICS?

If you can pass PICS, you'll pass NICS no problem, it's the same stuff (PA's PICS is more strict). Remember, for an LTCF, they don't just look at a PICS check, they can (and often will conduct a background investigation that goes beyond a simple criminal history or mental ajudication/302 check).

[NineseveN]

In order to be DQ'd due to a 302, you must appear before a judge.

If I go to the hospital, and BS them and tell them you have been suicidal, and they issue a 302 Warrant, cops come and take you to the hospital, and you go through an evaluation, you will be found OK and sent on your way.

At this point you are not disqualified.

However, if the shrink thinks you are suicidal or an immediate danger to yourself or others, you will go before a judge, and he/she will decide if you are to be committed involuntarily to an institution.

No judge = Ok to purchase. Judge's decision = you are fooked.

That sounds like due process to me?

Federally, it requires actual adjudication, in Pennsylvania, it does not. I could be wrong but...


http://weblinks.westlaw.com/find/def...1F-4B9C7796F22

(c) Other Persons
...
(4) A person who has been adjudicated as an incompetent or who has been involuntarily committed to a mental institution for inpatient care and treatment under section 302, 303 or 304 of the provisions of the act of July 9, 1976 (P.L. 817, No. 143), [FN2] known as the Mental Health Procedures Act. This paragraph shall not apply to any proceeding under section 302 of the Mental Health Procedures Act unless the examining physician has issued a certification that inpatient care was necessary or that the person was committable.

http://weblinks.westlaw.com/find/def...89-F4EECDB8638

§ 7302. Involuntary emergency examination and treatment authorized by a physician--not to exceed one hundred twenty hours



(a) Application for Examination.--Emergency examination may be undertaken at a treatment facility upon the certification of a physician stating the need for such examination; or upon a warrant issued by the county administrator authorizing such examination; or without a warrant upon application by a physician or other authorized person who has personally observed conduct showing the need for such examination.

(1) Warrant for Emergency Examination.--Upon written application by a physician or other responsible party setting forth facts constituting reasonable grounds to believe a person is severely mentally disabled and in need of immediate treatment, the county administrator may issue a warrant requiring a person authorized by him, or any peace officer, to take such person to the facility specified in the warrant.

(2) Emergency Examination Without a Warrant.--Upon personal observation of the conduct of a person constituting reasonable grounds to believe that he is severely mentally disabled and in need of immediate treatment, and physician or peace officer, or anyone authorized by the county administrator may take such person to an approved facility for an emergency examination. Upon arrival, he shall make a written statement setting forth the grounds for believing the person to be in need of such examination.


(b) Examination and Determination of Need for Emergency Treatment.--A person taken to a facility shall be examined by a physician within two hours of arrival in order to determine if the person is severely mentally disabled within the meaning of section 301 [FN1] and in need of immediate treatment. If it is determined that the person is severely mentally disabled and in need of emergency treatment, treatment shall be begun immediately. If the physician does not so find, or if at any time it appears there is no longer a need for immediate treatment, the person shall be discharged and returned to such place as he may reasonably direct. The physician shall make a record of the examination and his findings. In no event shall a person be accepted for involuntary emergency treatment if a previous application was granted for such treatment and the new application is not based on behavior occurring after the earlier application.


(c) Notification of Rights at Emergency Examination.--Upon arrival at the facility, the person shall be informed of the reasons for emergency examination and of his right to communicate immediately with others. He shall be given reasonable use of the telephone. He shall be requested to furnish the names of parties whom he may want notified of his custody and kept informed of his status. The county administrator or the director of the facility shall:

(1) give notice to such parties of the whereabouts and status of the person, how and when he may be contacted and visited, and how they may obtain information concerning him while he is in inpatient treatment; and

(2) take reasonable steps to assure that while the person is detained, the health and safety needs of any of his dependents are met, and that his personal property and the premises he occupies are secure.


(d) Duration of Emergency Examination and Treatment.--A person who is in treatment pursuant to this section shall be discharged whenever it is determined that he no longer is in need of treatment and in any event within 120 hours, unless within such period:

(1) he is admitted to voluntary treatment pursuant to section 202 of this act; [FN2] or

(2) a certification for extended involuntary emergency treatment is filed pursuant to section 303 of this act. [FN3]

Here's the ATF's ruling in response to Russell Laing's case (links reproduced below for more information):

September 4, 1998

Dept. of Treasury
Bureau of Alcohol, Tobacco & Firearms
US Custom House
2nd & Chestnut Streets
Philadelphia PA 19106

Mr. Jon Pushinsky, Esquire
1808 Law & Finance Building
429 Fourth Avenue
Pittsburgh, PA 15219

Dear Mr. Pushinsky:

You had asked if a person who has been involuntarily detained for an emergency mental health examination pursuant to 50 PA Cons STAT Sect 7302 would be prohibited from possessing firearms under 18 USC Sec 922(g)(4). You stated that you believe such a person would not be prohibited. We agree.

Title 18 USC Sec 922(g)(4) makes it unlawful for a person who has been committed to a mental institution to possess a firearm. The term "committed to a mental institution" is defined in 27 CFR Sec 178.11 as follows:

" A FORMAL commitment of a person to a mental institution by a court, board, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes a commitment for mental defectiveness or mental illness. It also includes commitments for other reasons such as drug use. THE TERM DOES NOT INCLUDE A PERSON IN A MENTAL INSTITUTION FOR OBSERVATION or a voluntary admission to a mental institution."

An involuntary detention under Section 302 does NOT constitute a commitment to a mental institution within the meaning of 27 CFR Sec 178.11. Section 302 provides for temporary emergency measures and as such falls short of the "formal commitment" described in Sec 178.11. Although Section 302 provides for the immediate medical
treatment of a person deemed by a physician to require it, the apparent broader purpose of the statute is to enable the authorities to observe the subject and determine their options within a 120 hour period. One option is to make an application for extended involuntary emergency treatment pursuant to 50 PA CONS STAT Section 303.

Unlike a person detained pursuant to Section 302, a person facing extended involuntary treatment (up to 20 days) pursuant to Sec 303 is afforded a variety of due process rights including the right to counsel, notice, and hearing. Pennsylvania also provides for longer periods of commitment pursuant to CONS STAT Sec 304 & 305. These
sections likewise provide a panoply of due process rights for persons who might be subject to them. In the context of these provisions for formal commitments, the distinction between a detention under Sec 302 and a commitment which would meet the definition in CFR 27 Sec 178.11 is clearer still.

GIVEN THE LACK OF DUE PROCESS provisions afforded by 50 PA CONS STAT Sec 302, the limited duration of a detention pursuant to it, the fact that its primary purpose is to provide mental health officials time to observe a detainee and make an assessment, and the existence of more formal commitment procedures under Pennsylvania law, we conclude that a detention under 50 PA CONS STAT Section 302 does NOT constitute a commitment for the purpose of 18 USC Sec 922(g)(4).

If you have additional questions concerning this matter, please do not hesitate to call ATF Attorney Kevin White at (215) 597-7183.

Sincerely Yours,

Lawrence L. Duchnowski
Special Agent in Charge

So unless something has really changed (and it may have and I missed it), a simple warrantless 302 commitment does not have true "due process" as it requires no adjudication for the first 120 hours. Once it does become adjudicated, it then becomes a different (303...) commitment, at least that's how it's been explained to me. I'm probably missing something, you know how often I do that.

Note, PA's Act 70 of 1998 ran through with NRA fanfare stating that it added "due process" to section 302 commitments, but all it really did was require the attending physician to type up a short letter and send it to the PSP stating that the person was in need of mental care. That's not due process and I can't find any change to the section making actual adjudication necessary for the 302 emergency commitment. I'd love to see something to the contrary though, I hate not having the full story.



* Russell Laing
http://www.gunownersalliance.com/r-laing.htm
http://beyond-the-illusion.com/files..._we_forget.txt
http://deadbangguns.com/Articles/RestrainingOrder.html
http://www.gunownersalliance.com/process2.htm