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A benefit conditioned on surrendering a constitutional right creates an impermissible burden on that right, even though the burden may be characterized as being only indirect. Sherbert v. Verner, 374 U.S. 398, 404 (1963)
Defendants who do not plead guilty and go to trial reserve the right: To be found guilty only by a unanimous jury of guilt beyond a reasonable doubt and jury instruction that the burden is on the prosecution to prove its case To raise constitutional and other legal challenges as to the manner in which the government acquired evidence to support prosecution To appeal the conviction and any ancillary rulings underlying the conviction. For federal firearms cases this means the constitutional muster of the 18 U.S.C 922 (g) prohibitor. In 2016, 97.3% of defendants in the federal system plead guilt and in 2017, it was around the same 97.2%. Fewer than 3% of federal criminal defendants chose to exercise their constitutional right. Many reports and lawyers concur on the fact there is ample evidence that many defendants are compelled to waive their right to trial because the prosecutor's offers in their plea bargain far outweigh the alternate "trial penalty" that is too steep to risk. This usually takes the form of extra time served or years beyond the mandatory minimum. Formal talking heads will discuss the trial penalty as one of expediting court processes as the system would simply collapse if all defendants had full on trials. While true, too many defendants who are guilty in part or are wholly innocent are compelled to agree to pleas bargains that include time served, a permanent record, and loss of a right to appeal the merits of their conviction. For purposes of this comment, the focus shall be on the effects on appeals. So given the current climate around the Gun Control Act and the Bipartisan Safer Communities Act, many advocacy groups like Giffords, Brady, and Mom's Demand Action are pushing for "stiffer" penalties for violations of the GCA and increased groups of prohibited persons and firearm classifications. Given that the expenses of a federal civil suit fall on plaintiff, they find themselves unable to advance their federal civil suit challenging the constitutionality of these statutes. A federal defendant may advance their claims through appeal but this is exactly where the trial penalty reveals its pervasive effects. Prosecutors bear wide discretion to dictate the terms and timing of plea agreements, and can insist on objectionable conditions knowing that those terms will likely never be subject to review. It is common practice to require defendants to waive the right to appeal their sentence or important legal rulings. So given this, then if a defendant is charged with possession of an "assault rifle" violating 922 (g)(4), 932, and 922 (a)(6). Per §2K2.1 "Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition" a defendant was found with a (I) semiautomatic firearm that is capable of accepting a large capacity magazine ("assault rifle"); defendant was a prohibited person at the time of the offense; defendant was also convicted under 18 U.S.C. § 922(d), § 932, § 933; or was convicted under 18 U.S.C. § 922(a)(6) and committed the offense with knowledge and intent then defendant shall be deemed a level 20. If there were more than three firearms then it moves up to level 22. Since most normal firearm owners buy several firearms this is not uncommon for a defendant to be found with several. So with a level 22, the recommended time ranges from 41- 51 months. However, given the large breadth given to prosecutors and the trial penalty, if defendant wishes to advance their case and plan an appeal on the grounds of Bruen and Rahimi, then the federal prosecutor can recommend ten years or more during the penalty phase. Most defendants especially 922 (g)(4) nonviolent prohibited persons do not wish to serve that much time nor have a vested interest in overcoming a 922 (g)(4) conviction on constitutional grounds in the name of 2A advocacy. Thus defendants usually take a plea of probation or a year of time served and five years probation in exchange of waiving their trial rights and their right to appeal their conviction. As a note once convicted, they now fall under 18 U.S.C. 922 (g)(1) too as they have been convicted in a federal court, of a felony, for which the judge could have imprisoned them for more than one year, even if they received a shorter sentence including probation (plea bargain). This further dissuades them from pursuing any challenges to their prohibited status. And thus the GCA prohibitors remain largely unchanged and unchallenged in part to this trial penalty scheme.
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Defendants and relatives routinely get IST v NGRI confused when dealing with the criminal justice system. Shortly summarized IST applies to whether defendant can reasonably understand and assist in their trial defense and if the trial should be stayed for defendant to be restored to competency vs trial continued. NGRI is an affirmative defense whereas IST is more of a procedural issue and defendant can still be found guilty after restoration and the stay on proceedings is lifted. NGRI is either the entire defense or it is no defense at all unlike IST. People v. Elmore (2014) 59 Cal.4th 121, 145 The controlling case, Pate v. Robinson, 383 U. S. 375 (1966), held that failure to observe mental health inquiry procedures that are adequate enough to protect defendant's right not to be tried or convicted while incompetent to stand trial is a deprivation of due process right to a fair trial. This stems from the common-law prohibition against trials in absentia; ie a mentally incompetent defendant, though physically present in the courtroom, is in reality, not afforded any opportunity to defend himself due to cognitive absence or severely impaired thought processes. Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, 108 U. Pa. L. Rev. 832, 834 (1960). Each state has their own version of "a person who as a result of mental disease lacks capacity to understand the proceedings against him or to assist in his own defense shall not be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures." A judge shall, upon his own motion or upon a motion filed by defense counsel or the state shall stay the proceedings and order a psychiatric examination if there is reasonable cause to believe that defendant has a mental disease that impairs defendant's fitness to proceed or assist his counsel. A court's "duty to assess competence is a continuing one." People v. Rodas (2018) 6 Cal.5th 219, 236, fn. 5 [239 Cal. Rptr. 3d 814, 429 P.3d 1122]. This means that this inquiry is not limited to during preliminary hearings or its ilk. The word `substantial' does not dictate there be a large quantity of evidence of incompetence; rather, it means that there must be some evidence of sufficient substance so long as it cannot be dismissed as inherently unpersuasive. A court's role is only to decide whether the evidence of incompetence is substantial, not to resolve the question of incompetency then and there. Of note, an uncooperative defendant is not tantamount to an incompetent one. see People v. Mai (2013) 57 Cal.4th 986, 1033 [161 Cal.Rptr.3d 1, 305 P.3d 1175] Legally this presents itself as a manic patient who refuses to take medication, talk to doctors, aggressive in their cell, or argues with counsel is not always deemed incompetent. Parents may ask the defense counsel to assert that they are IST but their claims may not succeed if this is the only presentation. The judge nor the state may sua sponte based on its own observations of defendant's behaviour dismiss the inquiry in lieu of the formal competence inquiry. Not guilty by reason of mental disease is considered an affirmative defense, requiring the defendant to carry the burden of proving that he has a mental disease or defect excluding responsibility. The plea of insanity is thus necessarily one of confession and avoidance. Because NGRI is inherently one of confession and avoidance; rather, it determines whether defendant shall be punished for the guilt which was already established and thus is not the question at hand. People v. Blakely (2014) 230 Cal.App.4th 771, 775. In order to use evidence of mental disease or defect to negate a required culpable mental state, like IST, it is not necessary that defendant himself advance the affirmative defense. NGRI requires that defendant due to their mental disorder or state was incapable of knowing the nature and consequences of his conduct; not that he would have difficulty. Most courts follow the M’Naghten Rule or some other iteration. To establish a defense there must be evidence [burden of proof], at the time of the act, defendant was suffering from a defect of reason, from mental disorder/disease which directly rendered them unable to know the moral nature of the act; or, if he did know it, that he did not know he was doing what was wrong. The two common defenses stemming from M’Naghten are referred to as the “cognitive incapacity” and “moral incapacity” strains of the insanity defense. They allege that the NIAA requires that the person seeking relief from disabilities must seek an order restoring their rights from the state and county that formally committed them / adjudicated them mentally defective. The AUSA explaining this rule asserts that Congress via the GCA bars forum shopping (mentioned at 17:55).
“The term "mental defective" is not defined in the firearms statute.”
U.S. v. Vertz, 102 F. Supp. 2d 787, 788 (W.D. Mich. 2000). This case is interesting in that it discusses when a state's commitment procedures do not comport with the CFR and Mai/Stokes/Rehlander as a defendant was not formally adjudicated mentally defective nor adjudicated mentally defective within the meaning of 27 C.F.R 478.11. Defendant's adjudication is not sufficient to bring defendant within the statute. His state probate court made no finding that he was a danger to himself or others or that he lacked the mental capacity to contract or manage his own affairs. Accordingly, the government has presented no evidence that defendant had been adjudicated mentally defective. The only adjudication on record was a 1988 adjudication by a probate judge that defendant was a person requiring treatment because he is mentally ill. This adjudication is not sufficient to bring defendant within the statute within the opinion in Vertz. His treating doctor certified that defendant was mentally ill, that he presented a likelihood of injury to self and others, that he did not understand need for treatment, and that he required treatment. U.S. v. Vertz, 102 F. Supp. 2d 787, 789 (W.D. Mich. 2000). Although at the time of this case, Stokes and Mai had not been decided, this does not meet the criteria of committed to a mental institution as defendant was not formally committed to a mental institution even though the CFR is not predicated on dangerousness to self, others, or grave disability/inability to manage affairs. Defendant was admitted to the Ypsilanti Regional Psychiatric Hospital pursuant to a petition signed by a registered nurse at the psychiatric unit of McLaren Hospital. The petition was accompanied by a physician's certificate signed by his doctor. Another doctor filed a similar certificate on September 12, 1988, certifying that Defendant was a danger to himself, that he was unable to attend to his basic physical needs, and that he did not understand his need for treatment. At the court hearing on September 15, 1988, the County Probate Court adjudicated defendant mentally ill. The probate court found that Defendant was a person requiring treatment because the individual is mentally ill. However, the court order did not result in a hospital commitment. It specified there were less restrictive alternatives to hospitalization. Since the CFR does not define mental institution, ATF clarifies such to be "mental health facilities, mental hospitals, sanitariums, psychiatric facilities, and other facilities that provide diagnoses by licensed professionals of mental illness, including a psychiatric ward in a general hospital". Of note future considerations ATF's clarification of mental institution is subject to Auer deference. The two main points with this case is that defendant was not 1) formally committed even though he was committed to a hospital and 2) that he was not adjudicated mentally defective since the court found he was mentally ill and in need of treatment but did not make the requisite finding of dangerousness or inability to care for his affairs. Subsequent case law deems that a physician certification for treatment and commitment to a hospital does not qualify as formal as defendant has had no chance to present evidence to the contrary, be represented by counsel, or have an avenue to challenge such. Although precedent advises that federal courts seek guidance from state law in resolving the federal question of whether an individual has been committed to a mental institution, in this case United States v. Giardina, 861 F.2d 1334, 1335 (5th Cir. 1988). A statute is "substantive" if the consequences of said statute impairs defendant's rights, imposes new or additional burdens, duties, obligation, or liabilities, or enumerates new rights. Many state involuntary commitment proceedings meet the criteria even without having formal judges or legal counsel. A defendant's second amendment rights and their access to relief from disabilities be it through the NIAA or federal courts should not be limited by their state of residence. Advocacy groups like Giffords, Brady, or Moms Demand Action would decry such adherence to due process considerations as they would opine "the potential for misuse of firearms or violence is sufficient to bring various categories of individuals within the firearms ban: to require a full-scale adversary proceeding and a finding, by clear and convincing evidence, that a person is mentally ill and poses a likelihood of harm to himself or others before giving effect to the firearms ban would undermine Congress's judgment that risk or potential, not likelihood, probability, or certainty, of violence is all that is required". Citing Heller and ignoring Bruen and Rahimi, they would continue to say that "nothing in Heller should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill" and such a “level of formality is not required for most of the categories Congress identified as within the firearms ban, including those who have merely been indicted for a crime". see 18 U.S.C. § 922(n). Unfortunately since Mai and its progeny had not been decided yet, the court found sufficient evidence to support the indictment, and the court denied defendant's motion to dismiss the indictment. 27 C.F.R 478.11 reads in pertinent part: (a) A determination by a court 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. Committed to a mental institution. 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 includes commitment for mental defectiveness or mental illness. U.S. CONST. Art. I § 9, Cl. 3:
No Bill of Attainder or ex post facto Law shall be passed. U.S. CONST. Art. I § 10, Cl. 1: No State shall ... pass any Bill of Attainder, ex post facto Law. In 2019 [citation] Welf and Inst Code 8103 was amended to state that anyone who had been 5150'ed more than once in a single year was now subject to a state lifetime ban on firearms. Given this, consider someone who was prohibited due to 2 5150s in 1998, purchased firearms in 2005 after the expiry of the holds, and then in 2020, their firearms were discovered because their firearms were registered in CFARS and their 5150 hold history was discovered through MHRS as the mandate from our DOJ around 2016 was for facilities to send all old records to be updated electronically. Given CA's comprehensive databases, the CFARS records and the MHRS 5150 records trigger a new record/hit in APPS which leads to LE going out to retrieve the firearm. Their success rate will vary as LE's ability to retrieve firearms from APPS hits is an ongoing subject of concern. Now due to a bar on prosecution of ex post facto laws, the person cannot be prosecuted for possession so long as they submit to the civil forfeiture order. It is the continued possession that triggers prosecution as the statute of limitations is determined by the last known date of possession not the date the firearm was purchased. Step One of the Marzzarella Framework
1. Prohibited persons due to mental defectiveness presumptively lack Second Amendment Rights. Heller holds that “longstanding prohibitions on the possession of firearms by mentally defective” are “presumptively lawful.” 554 U.S. at 626 & 627 n.26. Traditionally, the “mentally defective” are people who have been adjudicated by a lawful authority to be unable to manage their affairs or committed to a mental institution by a judge. “Most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’” United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010) People who have committed or are likely to commit “violent actions” in which violence (actual or attempted) is an core element to formal adjudicate someone on the grounds of dangerousness to others and is also grounds for formal commitment to a hospital. This per Heller undoubtedly qualifies that person as an “unvirtuous citizen” who lacks Second Amendment rights. United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011) (recognizes the common-law tradition that the right to bear arms is limited to peaceable or virtuous citizens). This category of “unvirtuous citizens” is therefore broader than violent criminals; it covers any person who has committed a violent action, even if it is in the course of an acute mental illness. Since both Heller, Bruen, and Rahimi allow for historical analogues that are not solely "deadringers", one barrier to overcoming this tradition of barring dangerous individuals is a ‘highly influential’ ‘precursor’ to the Second Amendment, the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents.. That report “asserted that citizens have a personal right to bear arms ‘unless for crimes committed, or real danger of public injury.’” The Gun Control Act and Brady Act both emphasize the importance and risk of mental illness, firearm ownership, and the increased risk of public injury from someone "snapping". [Citation] Marzzarella’s first step focuses on the probability of violent recidivism and is inconsistent with the true justification for the disarmament of people who commit serious crimes: they are “unvirtuous.” Barton suggests two ways to satisfy this second hurdle of step one: the first is that a challenger may show that he never lost his Second Amendment rights because he was not convicted of a serious crime; the second is that a challenger who once lost his Second Amendment rights by committing a serious crime may regain them if his “crime of conviction is decades-old” and a court finds that he “poses no continuing threat to society.” 633 F.3d at 174. |
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Juvenile Dependency and
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