The Russel Laing Story The R E S T of the Story!

Re: Russell Laing: mailto:rlaing@usa.net

Various Litigation-- case involving PA Act 17 (1995) -- Emergency mental health detention (aka "Section 302") by police without a warrant equates to lifelong loss of right to own/posses firearms.
 

All,

I have already won my court case several weeks ago, and had all of my 2nd amendment rights, including my CCW License, restored. Belatedly, my attorney received a formal ruling (reproduced, below) today from the Bureau of Alcohol, Tobacco & Firearms about the Federal view of PA Act 17 and it's declaration that a non adjudicated Section 302 detention constitutes an "involuntary mental health commitment" sufficient to cause the forfeiture of all 2nd amendment rights permanently.

I hope you will take time to read this brief letter from the BATF, reproduced below. It states clearly and unequivocally that a non adjudicated Section 302 detention does NOT provide due process protections, and therefore does NOT pass constitutional muster as a basis to deprive citizens of other constitutional rights, namely: the right to keep and bear arms.

There is a lesson here for all Pennsylvania legislators who voted for Act 17, and the still inadequate due process "fix" contained in Act 70 of 1998 (SB 543: Section 302 prohibition also now requires the examining physician to separately "certify" his belief that the detainee was mentally ill -- by typing up an uncontested, unrebutted letter and mailing it to the PA State Police!). PA Act 17 represents an unconstitutional law that even the BATF has unequivocally ruled to be invalid in that it absolutely denies the constitutionally guaranteed right to due process under the law. And the last time I checked, the Pennsylvania constitution has an even stronger construction
of the 2nd amendment language than is contained in the federal version.

How does any PA legislator justify their voting for a law which says that a non adjudicated accusation is sufficient to take away important guaranteed rights under both the state and federal constitution?

How do these legislators justify the current rounding up of the private medical records of ALL citizens (not just gunowners) that contain these non adjudicated accusations -- which will now be used by the governmental authorities (and who knows who else) to characterize these innocent individuals as dangerous and not to be
trusted. What kind of crazy, Nazi-esque, hysterical law-making is this?

You can be sure that all concerned citizens are now going to be taking a roll call from those legislators who passed laws that trivialize the right to due process, the right of privacy for medical records, and that treat the right to own firearms as a minor privilege grudgingly conferred and easily withdrawn.
 

REPRODUCED BATF LETTER:
 

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

END OF REPRODUCED LETTER
 

Instead of rounding up the private, non adjudicated medical records of citizens, I say we should round up the legislators and ask them to declare whether or not they believe that citizens of this state, and this country, have the right to the protection of due process. The ones that fail to affirm this fundamental right -- or fail back it up with action -- will be summarily dismissed in this next election. We shouldn't have to make a belief in the constitutional right to due process as a litmus test for our elected officials, but the past nightmare that I've gone through is ample testimony to the terrific cost of not being constantly vigilant.

Russell G. Laing