Gun Control & RKBA
Related: About this forumAttorney: SAFE Act Pulls Client's Pistol Permit due to Medication
Last edited Fri Apr 12, 2013, 11:19 AM - Edit history (1)
The man turned in his guns, and now he is trying to get them back.
"He has seven pistols, and he is a target shooter, and he is a person who is engaged in competitions with his firearms," says attorney James Tresmond.
According to Tresmond, his client is a Western New York professional with no criminal record - not even a speeding ticket - who wishes to remain anonymous. He says the man received a letter dated April first telling him he must immediately surrender his seven handguns and pistol license to the Amherst Police Department.
Updated here:
http://www.democraticunderground.com/1172119657
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discntnt_irny_srcsm
(18,479 posts)...without a warrant, a letter is a letter and carries no force of law. It's rather clear that a right is a right until suspended or revoked through due process. A letter from a clerk = due process? I don't think so. New York should be ashamed. 
bubbayugga
(222 posts)slackmaster
(60,567 posts)Or to avoid treatment altogether.
bubbayugga
(222 posts)or committed to a mental institution.
Furthermore, McDonald versus Chicago incorporated the second amendment against the various states; therefore, confiscating firearms without due process is likely unconstitutional especially when the conditions for the confiscation are wholly inconsistent with existing federal law.
Section 922(g)(4) of 18 U.S.C. makes it unlawful for any person who has been adjudicated as a mental defective or who has been committed to a mental institution to possess firearms or ammunition. This prohibition covers two classes of persons—those who have either been (1) adjudicated as a mental defective; or (2) committed to a mental institution.
Each of these terms is defined by Federal regulation at 27 C.F.R. § 478.11 as follows:
ADJUDICATED AS A MENTAL DEFECTIVE
a.) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
1.)Is a danger to himself or to others; or
2.) Lacks the mental capacity to contract or manage his own affairs.
b.) The term shall include—
1.) A finding of insanity by a court in a criminal case; and
2.) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.
COMMITTED TO A MENTAL INSTITUTION
This term means a formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term also includes a commitment for mental defectiveness or mental illness, and commitments for other reasons such as for drug use. The term does not include a person in a mental institution for observation or any voluntary admission to a mental institution.
ATF has historically interpreted these provisions as constituting two distinct prohibitions. Each prohibition represents a separate disqualification. For example, a “commitment” means a formal commitment, not a voluntary stay. Excluded are stays for observation only. Nor does the term include a stay in a mental institution that never involved any form of adjudication by a lawful authority. However, a stay that began as a voluntary stay may be subsequently transformed into a disqualifying stay if a court, board, or other lawful authority makes a determination that the person is a danger to self or others. Moreover, a voluntary stay that is by itself not disabling could be later converted into a formal commitment and therefore be disabling.
For purposes of a Federal firearms disability, ATF interprets “adjudicated mental defective” to include anyone adjudicated to be a “danger to him or herself,” “a danger to others,” or lacking “the mental capacity to contract or manage their own affairs.” For purposes of Federal law, “danger” means any danger, not simply “imminent” or “substantial” danger as is often required to sustain an involuntary commitment under State law. Thus, for example, adjudication that a person was mentally ill and a danger to himself or others would result in Federal firearms disability, whether the court-ordered treatment was on an inpatient or outpatient basis. This is because the adjudication itself (a finding of danger due to mental illness) is sufficient to trigger the disability.
It should be emphasized that whatever adjudication procedure a State employs, the Constitution requires certain guarantees of due process. In order for a particular commitment order to qualify as a prohibiting commitment, ATF historically has required that traditional protections of due process be present, including adequate notice, an opportunity to respond, and a right to counsel. Such protections are important because whether a person has been adjudicated a mental defective or committed to a mental institution, the firearms disability is permanent.
krispos42
(49,445 posts)Or do you need a permit to own handguns in NY?
All handguns in New York are registered, and a permit is required.
krispos42
(49,445 posts)
shadowrider
(4,941 posts)I'll see your Hmph and raise you a "I told you so".
rdharma
(6,057 posts)As I commented the first time the OP posted this in "General".......
"Under the new Safe Act in New York, anyone receiving mental health treatment is subject to a medical professional filing a report if they feel their patient is,"likely to engage in conduct that would result in serious harm to themselves or others."
Straw Man
(6,622 posts)Of course you do.
Paul E Ester
(952 posts)Peace.
rdharma
(6,057 posts)
ileus
(15,396 posts)You have to be mental to own a gun...right?
Straw Man
(6,622 posts)Looks like the NYSP screwed up:
David Lewis of Amherst, a 35-year-old college librarian, was told last week by the Erie County Clerk's Office to surrender his seven handguns he uses for target shooting because his pistol permit had been suspended under the mental health provisions of the New York Safe Act. Under that law, mental health professionals are required to report patients they believe could harm themselves or others. That information can be used to determine if the patient has a gun license and, if so, to revoke or suspend the license and take away the patient's firearms.
It turns out authorities went after the wrong pistol permit holder.
A state Supreme Court Judge William Boller ruled today Lewis can have his permit reinstated and get his guns back, according to the Buffalo News.
" ... this court has determined that the information received from the New York State Police, which served as a basis for suspension of the licensee's firearms license, was in error. Specifically, the individual named pursuant to the New York Safe Act was not in fact the above named licensee," the judge stated.
More here:
http://www.syracuse.com/news/index.ssf/2013/04/buffalo_mans_pistol_permit_wro.html
rdharma
(6,057 posts)Told ya! 
Straw Man
(6,622 posts)The State Police are blaming the county clerk for not making sure they had the right man, since county clerks are the ones with the administrative authority over permits. But his lawyer is claiming that the man had several direct phone contacts from the State Police. There are several pertinent questions. If he was the wrong man, who was the right man? Where did the State Police get this tip from? What was the nature of the tip? (They aren't saying.) You can bet that these anonymous denunciations are going to lead to more snafus like this.
"Told ya" nothing. In other words, no one -- least of all you -- knows anything yet. And yes, by the way, he's suing.
derby378
(30,252 posts)And it should give pause to any Democrat who envisions NY-style gun control in her own home state. Good thing it'll never fly in Texas.
Response to Paul E Ester (Original post)
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