rape/mental heath/gun control?

[ATW525]

So this woman (who according to federal law can no longer bear arms) will do what? when someone enters her home to attack her.

For home defense, percussion firearms might be an option for her. It would really depend on state law, though.

 

[MLeake]

Well, according to our TFL lawyers, she would stand a serious risk of committing a federal felony if she were to take possession of a firearm at this time.

That implies a greater problem than you claim, JimDandy.

 

[JimDandy]

Well, according to our TFL lawyers, she would stand a serious risk of committing a federal felony if she were to take possession of a firearm at this time.

I didn't dispute that. I disputed the laying of fault with the FBI and NICS, as opposed to with the State government that is not adequately servicing it's citizen.

 

[MLeake]

Negative, JimDandy. If the only issue were reporting lag, one would think the concern would be that she might have to prove to the feds that she had not committed a crime, but the system was in error.

Our in-house legal beagles are saying she would actually be committing a crime.

That is a broken system... yet you keep arguing to expand it.

 

[Evan Thomas]

However, I'm not sure People v. Goree says what you think it does, Vanya.

You're right that the charge in that case wasn't possession, but the opinion does state that self-defense excuses a possession charge, as well:

A defendant’s commission of a violent crime may be excused when the defendant acts to protect himself or others, as may a firearm-possession charge.

 

[Spats McGee]

There is a big difference between "X is not a crime," and "X is a crime, but I had a really, really good reason for doing it anyway." SD shootings are a great example of this. Killing a person is a crime. Killing someone is SD means you had to have a really, really good reason to kill that person.

ETA: Sorry, Vanya, but I cross posted with you. Give me a second and I'll have a response to your post.

 

[Evan Thomas]

And rightly so. Killing someone is never a good thing, and should be very hard to justify. (This is why I'm not totally convinced that stand-your-ground laws, at least as written in many states, are an entirely good idea.)

(Crossing again... round and round we go... )

 

[JimDandy]

Our in-house legal beagles are saying she would actually be committing a crime.

Again, I have never disputed that.

If you can't vote in an election because your state hasn't reported you registered to vote, do you blame the state, or the FEC?

If the IRS comes after you for back taxes, because the State Income Tax isn't reported to the Feds right for the federal tax break, do you blame the state, or the Feds?

The State not doing it's job is not the Fed's fault.

 

[Spats McGee]

@ Vanya: Let me see if I can get this crossposting straightened out.

I can't seem to open my own link right now, but here are a couple of points, as I recall my reading of the opinion in the early pre-coffee hours of the day. For purposes of MCL 750.227b, the crime is described as "A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except" for certain exceptions. So the jury acquitted the defendant of the felony. If the defendant was acquitted of the felony, then possession was not, in and of iteself, a crime. For a felon, mere possession is the crime. The Defendant might be excused of a homicide on SD grounds, but possession up to the point where someone breaks in was still a crime.

 

[MLeake]

JimDandy, here is where your analogy fails:

If the state had not updated you with the feds, but allowed you to vote; and if your paperwork had been filed on your end, it is highly unlikely a federal auditor would charge you with voting fraud. Your state or local election commission might get sanctioned in some way for not doing the paperwork.

In the case under discussion, the woman could be not only charged, but convicted of a federal felony.

I really do not understand your stubbornness in defending the system.

 

[JimDandy]

but possession up to the point where someone breaks in was still a crime

I found it! It appears to be California law, and not a case, but a combination of the law, and jury instructions. I don't know what y'all would use for a technical term, but I'm going to call it Justifiable Possession by a Criminal For Dummies.

Is there a federal counterpart to this?

 

[MLeake]

Spats, not quite the same but related would be Bernard Goetz; not guilty of aggravated assault / ADW, but convicted of unlawful carry.

 

[Spats McGee]

Well, JD, I have to say: That IS very interesting! A quick search on the Westlaw Key Numbers turns up "transitory possession" as a defense, as well as "self-protection as necessity."

Just looking over thse, it's the "imminency" aspect that jumps out at me. It's one thing for a prohibited person to pick up a pistol when an attacker is inside the house, and quite another to buy one when the threat is not imminent. Some of the caselaw, picked up from a few cases that I saw. Please bear in mind that I did not assess these for precedential value.

In order for a defendant to avail himself of the justification defense, he must prove by a preponderance of the evidence: (1) that he was faced with an unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) he did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative to violating the law; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. United States v. Deleveaux, 205 F.3d 1292, 1297-99 (11th Cir.2000).


The imminency prong “requires nothing less than an immediate emergency.” United States v. Bell, 214 F.3d 1299, 1300 (11th Cir.2000). In United States v. Rice, 214 F.3d 1295 (11th Cir.2000), for example, we held that the defendant in that case did not face an immediate emergency because after he was threatened by a local gang (with whom he had a history of run-ins), he was able to leave, get his gun, and return to same spot where he had been threatened. Id. at 1297-99. “Indeed, at the time of his arrest,” we said, “the [gang] was nowhere to be seen.” Id. at 1299.

United States v. Harmon, 213 F. App'x 914, 916 (11th Cir. 2007)

To sum up, we confirm the suggestion previously made in Holt and Holliday,*409 and add our voice to the weight of authority by holding that, in some circumstances, justification-a term that we define to include, inter alia, self-defense-can comprise an affirmative defense to a federal felon-in-possession charge. Furthermore, we think it highly unlikely that Congress, in enacting the federal felon-in-possession law, intended to require the government to prove beyond a reasonable doubt the existence of a fact that it did not specify as an element of the offense. Consequently, we hold that in a federal felon-in-possession prosecution, there is no sound basis for treating that defense differently from other justification defenses. It follows that a defendant who asserts self-defense in such a case must carry the devoir of persuasion on that defense by a preponderance of the evidence

United States v. Leahy, 473 F.3d 401, 408-09 (1st Cir. 2007)

Jury instructions on a justification defense to a felon-in-possession charge are proper in “rare situations.” United States v. Singleton, 902 F.2d 471, 472 (6th Cir.1990). In order to warrant a justification instruction, the defendant must present evidence from which a reasonable jury could conclude by a preponderance of the evidence:


(1) that defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury;


(2) that defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct;


(3) that defendant had no reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm;


(4) that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm; ... and


(5) [that the defendant] did not maintain the illegal conduct any longer than absolutely necessary.

United States v. Langhorn, 473 F. App'x 436, 440 (6th Cir. 2012)

 

[Evan Thomas]

Spats, the Michigan cases refer specifically to a situation in which a convicted felon takes possession of an assailant's weapon and then uses it to defend himself.

Here's a link to the original Michigan Supreme Court decision referenced in the Goree case. In that case, People vs. Dupree, the defendant was a convicted felon who took a weapon away from an assailant during a confrontation at a family party. He then used the weapon to shoot the assailant three times. The defendant challenged the assault charges raised against him, asserting that he acted in self defense. He was originally acquitted of assault but convicted of being a felon in possession. The Supreme Court upheld a lower court's ruling reversing that conviction, stating that:

...[W]e agree with the Court of Appeals that self-defense is generally available for a felon-in-possession charge if supported by sufficient evidence. Defendant introduced sufficient evidence from which the jury could have concluded that he violated the felon-in-possession statute but that his violation could be justified because he honestly and reasonably believed that his life was in imminent danger and that it was necessary for him to exercise force to protect himself. Therefore, we hold that self-defense is an available defense under these facts.​

Edit: I see you found the US Supreme Court decision I looked for, but couldn't find. Interesting stuff, and encouraging in terms of the Court's viewing self-defense as a right that trumps what would otherwise be criminal conduct. (Which seems only logical: if it justifies homicide, it ought to justify being, for a short time, a felon in possession.)

 

[JimDandy]

Well, JD, I have to say: That IS very interesting!

Wooo hoooo! I found something cool that makes even the lawyers raise their eyebrows! JD Here I come!

 

[Spats McGee]

Vanya, it appears that SD most certainly can be interposed in a felon-in-possession charge. However, see my comments above about the transitory nature of the possession, and the imminent nature that the threat must pose.

From People v. Dupree, to which you provided a link:

We agree that defendant introduced evidence from which a jury could conclude that defendant’s criminal possession of the firearm was justified because defendant honestly and reasonably believed that his life was in imminent danger and that it was necessary for him to exercise force to protect himself.

 

[kevinjmiller]

sluser, I'm greatly saddened by the trials and tribulation of your sister. Unfortunately her lawyer is right, currently there appears to be no available path for restoration of her rights. The appropriation restriction is an absolute stop and has apparently been affirmed by the SCOTUS (US v. Bean). At this point the only path for relief appears to be through Congress, I imagine only a very narrowly-worded modification to the appropriation restriction (ex. only fund relief applications for reason of mental commitment by those who have been declared competent in a most stringent way after a considerable period of time) would have a ghost of a chance. A long, uphill slog to be sure, but your sister sounds like someone who has come a long way uphill already. Good luck

 

[JimDandy]

Unfortunately the 4473 PDF does not allow one to copy and paste.

The "Exception" as described in the help section at the end of the document explains the NICS Improvement Act of 2007 to only apply to FEDERAL Adjudications of Mental Deficiency.

Further more http://bjs.gov/index.cfm?ty=tp&tid=49 Here we see the Government instructing the reader

Individuals can appeal denials and seek the correction of any inaccurate or incomplete information in the FBI databases by either applying to the FBI or the federal or state agency that contributed the information to the FBI.

The appeal to the ATF is strictly for appealing Federal findings- Convictions, and Adjudications.

Edited to Add: In Pub. L. 110-180 NICS Improvement Amendments Act of 2007 we are treated to this little gem:

(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.

From the same location we get:

(B) RELIEF FROM DISABILITIES- In the case of an adjudication related to the mental health of a person or a commitment of a person to a mental institution, a record of which may not be provided to the Attorney General under paragraph (1), including because of the absence of a finding described in subparagraph (C) of such paragraph, or from which a person has been granted relief under a program established under subparagraph (A) or (B), or because of a removal of a record under section 103(e)(1)(D) of the Bra dy Handgun Violence Prevention Act, the adjudication or commitment, respectively, shall be deemed not to have occurred for purposes of subsections (d)(4) and (g)(4) of section 922 of title 18, United States Code. Any Federal agency that grants a person relief from disabilities under this subparagraph shall notify such person that the person is no longer prohibited under 922(d)(4) or 922(g)(4) of title 18, United States Code, on account of the relieved disability for which relief was granted pursuant to a pr oceeding conducted under this subparagraph, with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms.

But I admit to getting lost on that entry, as I can't seem to find 103(e)(1)(D) and get a little lost in what they're talking about.

 

[godot]

Should this woman be carrying a gun?

Four years ago the OP's sister was raped. I empathize.

After that she attempts suicide and refuses treatment and the court institutionalized her for a period of time as a threat to herself. I don't know if this was overnight or for four years.

Regarding her current condition the OP says she "seams to have recoverd as much as anyone could expect". I'm not quite sure what that means, but if someone is carrying a gun, I want them fully recovered. What do her doctors say?
_______________________________________________________________

RE the mechanics of getting it done, she could contact her Congressman and Senators. They could probably get it done with a single phone call. If they fail her she could contact National Organization of Women or a similar organization. They live for such things.

 

[Spats McGee]

Regarding her current condition the OP says she "seams to have recoverd as much as anyone could expect". I'm not quite sure what that means, but if someone is carrying a gun, I want them fully recovered. What do her doctors say?

Out of respect for the OP's sister's privacy, let's avoid that can of worms. I think the legal aspects of this have been pretty well covered.

Accordingly, closed.