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

      From our last communication, I (Chris W. Stark) shared with you some important information concerning a 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. I bring to your remembrance the BATF letter, and also
the addition beyond the BATF letter, COMMENTARY TO ONE OF OUR READERS, which I am sure you will benefit in reading.

In the first email on this issue, Mr. Russell Laing shared this with us:

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.

[SNIP]
 

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
 

BEGINNING OF RUSSELL LAING'S COMMENTARY TO ONE OF OUR READERS:

To: (name suppressed)
From: Russell Laing

Re: Your Comments/Questions - BATF Ruling (PA/Federal Gun Law - Mental Health Disabilities to Gun Ownership)
 

Dear (name suppressed):

My case involved a filed court Motion to reinstate my PA License to Carry Firearms -- which had been revoked upon a non adjudicated mental health detention/observation in early 1996 ordered by a local township police officer acting without a legal warrant.  Allegheny County Common Pleas Court ruled in my favor on this case in early August 1998, even BEFORE the written ruling from BATF was received in support of my case. My attorney did note in the filed Motion with the Court that the BATF Chief Enforcement Officer of the Pittsburgh Office had verbally made the same representation to both me personally, and later to my attorney in a phone call. This BATF Officer (John McIllwayne) then referred us to Agent Duchnowski/BATF Philadelphia for a more formal ruling. This formal ruling, posted by Gun Owners Alliance among others, was received about a month after I had already won my case.

As if that wasn't enough, in doing some research of my own about a year ago I found that the BATF had published
a proposed ruling in the September 1996 Federal Register that exactly echoed the wording contained in their letter
concerning my case; I then found a later final set of these regulations published by BATF sometime in 1997. My
attorney included these rulings in the filed Court Motion. We got them every which way but loose, including both a
published final regulation, as well as an individual letter tailored specially to my case and in respect of
Pennsylvania statutes concerning firearms and applicable mental health law.

Your message alluded to many other unlawful acts that the government is capable of carrying out against innocent citizens. I want you to know that I have personally experienced, up close and personal, a number of the abuses you mentioned, including:

1. Having my home surrounded (for forty-five minutes) and then invaded by gun waiving officers who were acting without any legal warrant or other basis - they literally pounced on me in my bed as I slept

2. Being marched off in front of my neighbors to a locked psychiatric ward of a local hospital to be admitted on the
say-so of a local township police officer who testified that in his opinion I was "unable to care for myself"

3. After being escorted from my home-- having these same police officers drag my gun collection out of my home -
still locked in a gun safe even by their own testimony -- again, without any legal warrant or other permission to
enter my home, search it, or seize any property (I have no criminal record at all, not even a traffic record, and I was
not accused of making any kind of public or private threat, disturbance, violent act nor any other criminal behavior)

4. Having one of these officers visit me at this hospital while still locked up and threaten to cut my safe open with
a blowtorch unless I gave him the combination to my gun safe that they now had stashed away in their station

5. Despite a complete absence of any criminal record or behavior, having the Allegheny County District Attorney use me as a test case of the new PA Firearms code (PA Act 17 of 1995)...so that they could prove that they now had the power to seize anyone's guns and forfeit their rights without any due process -- whenever they felt like it. There is much more to tell, but you probably get the drift.

So, yes, I know a little bit about the excesses of governmental authority. My case was not won by acts of violence, but rather by the relentless pursuit of fundamental constitutionally based principles. This pursuit was only possible with the support and encouragement that I received from countless everyday freedom- loving Americans who simply listened to my story and told it to someone else. Thus my case got "due process" even when six different court systems turned me away with indifference or even hostility to the 2nd amendment (in one of my hearings for the return of my unlawfully seized property a prosecuting attorney from the DA's Office openly insisted that the 2nd amendment only pertained to the National Guard).

We ended up: (1) getting the Pennsylvania law amended in June 1998  (Act 70); getting a formal ruling from BATF that solidly affirmed the bond between the 2nd amendment and the right to due process under the law;  and (3) I went on to win all of my constitutional rights back. I also have a lawsuit pending against the police department (they've done similar versions of this to others in the community). I do not seek vengeance, but rather would like to see them take ownership of their wrongdoing that we might all live a little more secure in a mutual affirmation of what is right and just.

And this past weekend, for the first time ever, I took my two teenage sons to the gun range and continued a tradition in this country between father and son that dates back over three centuries. That is the real victory. It was worth absolutely everything that it cost me, and it is everyone's victory.
 
 

In Freedom,
Russell Laing

mailto:rlaing@usa.net
 

END OF COMMENTARY FROM RUSSELL LAING
 
 

May we learn the lessons of "Never give up!" Russell Laing is an excellent example of a freedom fighter, that won, using our current system of democracy.

All is not lost! We too, can still win the fight, if we refuse to give up.