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A culture-war-adjacent court opinion that @The_Nybbler may find entertaining:
An 80-year-old man applies for a permit to buy a rifle. The permit is denied, solely because he was involuntarily committed to a psychiatric hospital for four days forty years ago. He applies for expungement of the records of that commitment, so that he can get the permit.
The judge denies the application for expungement.
This is an object lesson in why people who think they don't need lawyers for stuff like this generally do need lawyers (unless, of course, this guy was so bad that he had a lawyer and the lawyer couldn't do anything about it). His big mistakes were:
He tried to downplay the 1983 commitment with testimony that was contrary to the medical records. My bitch ex wife gave me some pills that made me crazy but not too crazy because the doctors quickly realized I shouldn't have been there is pretty much textbook self-serving bullshit that judges hear regularly. A lawyer would have examined him so as to frame the matter as a guy who turned to drugs to deal with the stress of a bad marriage, which caused him to do regrettable things that he doesn't entirely remember.
He lied to the psychiatrist who examined him about why he was there because he thought he needed to to get an appointment, and then admitted his dishonesty to the court. A lawyer would have made him an appointment with a doctor who would provide the exact kind of evaluation the court looks for in cases like this.
There were statements in the file suggesting the guy was taking psych medications that he couldn't provide an explanation for other than that he wasn't taking any psych meds. He also seemed to have a more intimate knowledge of Lifestream and the doctors that practiced there than someone whose contact with the mental health system ended 40 years prior.
Most people who were involuntarily committed will have had continued psychiatric treatment for some time afterward and a history of how their condition progressed. When I was at the disability bureau, if I saw an involuntary commitment on someone's record and no other psych history, I'd assume they were homeless or in some other kind of situation where they were prevented from getting treatment.
We have no idea, from reading the opinion, what this guy was actually like or how he came off in court.
In other words, the judge could tell that the guy was full of shit, and since he has the burden of proof, she wasn't going to grant the expungement. Keep in mind that the court isn't going to subpoena this guy's entire medical history, so they're only relying on what he brought with him. Given that the guy doesn't come off as trustworthy and there's reason to believe he's more familiar with certain things than he's letting on, the court might have suspected that the guy wasn't providing a complete mental health record.
The first trouble is that, even assuming these things are all true, this conditions the availability of a constitutional right on knowing exactly how to frame a matter for the tastes of whatever judge or judges he was unlucky enough to pick months or years before seeing the court room, having the funds to hire lawyers (and since the guy isn't pro se, instead being represented by this guy, having the funds and knowledge to hire 'competent' lawyers), having the capabilities to act well as an effective witness at trial, and come off nicely-enough presented while sitting in court for a New Jersey judge to like him, (and don't know about a community services organization offering low-cost outpatient services). Few of these matters could be verified without a time machine; none are in the public record to even make sure that the judges are properly summarizing it.
The second trouble is that, especially when coming from someone that says "that seem onerous but that's the point" when it comes to this class of regulation, there's a lot of 'oh, my personal experience makes this seem a whole lot more reasonable' depends on things that the rest of us can't know.
The third's that assuming enough round up to true requires a lot of faith in the New Jersey appellate courts, and there's reason to believe judicial bias here older than most people writing on this site in general, and for at least one of the two judges here.
The deep problem is that these don't apply to the all or even a majority of the cases you're supposedly focused on, and could easily apply to the harmless. The "can't remember the name of their medication" test is a frustratingly close mirror to the Obama administration's 'fiduciary' test, which was quite broadly applied to people whose sole sin was having difficultly dealing with a checkbook. That's not only non-theoretical, it's a decade-old.
I hate to break it to you, but the same applies to any other area of the law, including whether the state can revoke your own liberty for a period of years. Yes, there's the added protection in that case that you will be entitled to an attorney if you can't afford to pay for one, which attorney will probably do an adequate job but might not, but in any event, all the other concerns you raise still apply. If you have suggestions on how we can idiot proof the legal system so that any moron can act pro se and get similar results to those that lawyers get now, I'm all ears, but a more realistic approach is to do more to ensure access to legal services for those who can't afford them.
As a side note, while that attorney was on record for the appeal, it isn't clear that the guy was represented at the initial hearing. Based on the available record, I'm inclined to believe that he wasn't. It's clear from the appellate record that the guy wasn't prepped to testify, probably hadn't looked at the records he was using to make his case, and relied on the report of a regular treating psychiatrist rather than a forensic psychiatrist who would have testified in court. There are attorneys in Pennsylvania who specialize in this sort of thing and no, it isn't cheap, but it's what you have to do.
The main point I want to make, though, is that you're treating this as though these hearings are prerequisite to exercising one's Second Amendment rights. But they're not; this is the case of someone who was already adjudicated ineligible to purchase firearms based on a separate proceeding, at which the right to own firearms was collateral to the determination. To the extent that he has any right to the expungement of that record, the burden of proof is on him, as the state already met theirs. The procedural posture here is no different than that of a convicted felon petitioning the court for an expungement so he can buy a gun legally. The judge denying that petition isn't revoking any right, she's merely declining to reinstate a right that was already revoked in a prior proceeding.
There is no right to an expungement; it's entirely a creature of statute. New Jersey could just as easily make expungement unavailable in any circumstances, or have a process to restore some disabilities involuntary commitment results in but retain the prohibition on owning a gun, or only allow expungement in circumstances that don't apply here, and the guy would have been SOL from the start, and this case wouldn't exist, and no one would be bitching about how his rights are being violated.
This whole matter is complicated by the fact that we are dealing here with expungement and not an alternative process for restoration of gun rights. Most other states have some process for this, but an expungement is much easier to get in New Jersey than in other states, the standards are similar to those the Feds use, and it's ultimately a stronger system since an expungement's ability to remove the disability isn't reliant on whether the process is compliant with the Federal guidelines. Whether or not there's a constitutional right for there to be some mechanism to restore gun rights to those with a history of involuntary commitment is an open question. The Sixth Circuit ruled that the Second Amendment prohibited the permanent revocation of rights just because someone was committed at one point in his life, but it didn't elaborate with regard to what was necessary to restore those rights.
In any event, it's hard to see what the court did wrong here. The guy has the burden of proof to show he should get an expungement, and he provided very little evidence beyond "I'm not nuts and you should take my work for it". He lied to the court about the circumstances surrounding the commitment. He admitted to intentionally misrepresenting his mental health to the doctor whose opinion he was relying on. How is the court supposed to base a determination on a bare-bones statement made by a doctor whom the applicant admits didn't get an accurate assessment? The applicant's testimony lacked credibility, the doctor's report lacked credibility, so what's left? Even if you can pick your way through the weeds and offer some basis upon which she could have granted the expungement, that's a long way from saying that she made the kind of error that the appellate court would reverse, and the two Republican judges who wrote the opinion seemed to understand that.
And the additional due process rights, and numerous opportunities to seek freedom, and the burden of proof falling on the government, and the burden of proof being much harsher on the government, yada yada.
It's possible, but a) we don't know and b) there's absolutely a lot of well-represented and reasonable clients that just don't present well to judges, especially when you're talking 80-year-olds.
Yeah, that this is "what you have to do" is a good part of my objection. Access to justice and civil rights dependent on thousands or tens of thousands of dollars is a right denied. (The other part is that it's far from clear that would be enough.)
Yes, the procedural posture here treat someone who had a mental health commitment like a convicted felon. Is that proceeding to issue a mental health commitment equivalent to the conviction of a felon?
I can't find the process New Jersey used in 1980, since a 1987 revision to state law was noteworthy for requiring a finding of dangerousness and mental illness, but the current law still allows initial holds for 72 hours without ever seeing or hearing from a judge, and an intermediate period up to 20 days with a court order under reduced requirements. Even assuming that T.B. had something more serious than a rubber stamp in 1980, it still had nowhere near the burden of proof, clear notice of law he was violating, or any similar due process right. (He near-certainly wouldn't have had access to an attorney, even had he seen a courtroom, and might have even been ex parte for the court hearing given the state of laws in other nearby jurisdictions at the time.)
There's a reason that this overlaps closer to the GVRO or various Red Flag laws -- but those processes are intentionally supposed to be temporary! The federal laws here apply even to mental health episodes that happened before the GCA1968 was even passed, and they chase a person to their grave unless specifically expunged.
Is the action here similar? Felons can be disarmed because being a felon is a long-lasting indicator of propensity to act violently outside the law (although even that's kinda marginal given how broad modern 'felonies' have become). Was T.B.'s issue in 1980 some long-lasting inherent problem that would likely recur? Or was it one time event? We don't know. T.B. provided some evidence that he had no current mental illness. No one on the court provides any evidence against that, they just woolgathered about how it wasn't trustworthy enough in some vague ways that their guts didn't like. The judge specifically said that these gutchecks pointed "not that he’s dangerous".
From a statutory perspective, the petitioner is only required to prove that their illness is in remission or substantially improved; the court (and the original medical director) are the ones to "find" if the petitioner "will not likely act in a manner dangerous to the public safety and finds that the grant of relief is not contrary to the public interest" based on "the circumstances of why the commitment or determination was imposed upon the petitioner, the petitioner's mental health record and criminal history, and the petitioner's reputation in the community". The petitioner demonstrated that their condition was substantially improved, and provided some evidence that they were not likely to act in a matter dangerous to public safety. And the judge, rather than pointing to some part of the petitioner's mental health record, or reputation in the community, or circumstances of their original commitment, said that they didn't like some of the evidence the petitioner provided or the petitioner's demeanor, and then the case is done, caput, do not pass go, do not collect your rights or your 200 USD.
I frankly have no idea how the judge in question here can honestly take a look at a forty-year period with no criminal history or further interactions with the mental health system or criminal justice system, a commitment that the judge found was motivated by the man attempting to strangle his wife, and say "I don’t know if that means that his condition is substantially improved or in substantial remission." I don't have high opinions of New Jersey cops! But I don't have that low an opinion, either.
That would just be annoying in other contexts. I'd like a lot more due process and a lot less 'whatever some jerkoff judge thought was good policy between ranting in their chambers', but I'm not optimistic about matters as simple as ['maybe judges shouldn't hear trials on laws that they pledge specifically to support'.
Here, we are talking a constitutional right, a petitioner who has never been convicted of a crime and may never have seen the inside of a court room before this appeal, and a judge who has rewritten the law until his or her only guiding star is 'what can I imagine' and only boundaries are 'could impact the public interest', in a jurisdiction that has spent literal generations and has extant caselaw demanding "the citizen acts at his peril" in this context. It is a problem when there is an unclear burden on the petitioner to fight any evidence that any judge may ever want or make up, in a hearing that becomes an adversarial hearing against that judge, and where there is no further opportunity or discussion before trial about what the judge decided was the magic words beyond 'hire the best and most specialized lawyer possible'.
T.B. here might well (maybe even likely would) fail an honest analysis of dangerousness, but we didn't get that. T.B. might well (maybe even likely would) fail an honest analysis of improvement in mental health condition. We don't even get a judiciary interest in that. At best, you can argue that this complied with the statute, as long as you put a heavy thumb on judicial interpretation of the 'well, it doesn't say we can't' sort. The courts could have subpeona'd medical records, or written that the petitioner refused to provide access. The courts could speak to a criminal record or lack thereof. The courts could have pointed to some critical issue in the original commitment hearing, if any existed, pointing to likely repetition or recurrence. They could have asked his wife or coworkers or doctors if he was strangling them. They didn't. Nor, for that matter did the judges comment on a lack of submissions on these points from the petition’s side.
They tea-leafed whether a guy could remember a name of a medication while speaking extemporaneously, or whether he might forget to use a safety. They announced that he needs some time working in the mental health system to prove to them he had gotten better (how long? why would that matter to an 80-year old?). And then they washed their hands of any questions of whether he was a danger to the community or mentally ill or what say you.
To treat this as in the interest of justice because you, personally, can smell a rat, in a case you couldn't be bothered to look at the first sheet before writing about?
I think the implication of the proceedings was that this was not true, clearly wasn't true, and the court didn't want to waste time and money on sorting it so used other procedural grounds to close the matter.
Most people who fail in these kinds of proceedings are so allergic to basic competence and not being an entitled asshole that nobody who actually witnesses the situation feels bad. In the same that you look at most police encounters and go: "Should he have beat his ass? No. Did he absolutely earn it? Yes."
Most principled third parties read about these situations and fear some authoritarian judge taking rights away (which does happen) but the vast majority is "please give me something, anything to work with.....okay I guess you won't."
But from a due process perspective, that's an abomination. If the problem genuinely was that the court believed TB had a criminal history or other occurrences of mental health breakdown, TB has absolutely no reason, having read the court's public record, to actually go and find proof on those things. There's not even a reference to what better proof would be about.
((Admittedly, because it's quite possible TB presented perfectly adequate proof, given that the expungement process requires petitioners give permission for a full background and mental health record search, and the law requires the court to ask the committing facility. I don't trust New Jersey judges.))
And more critically, it's trivially resolvable. Assuming without evidence that the court would be crippled by asking for criminal records, it costs the judge mere seconds to write out that the plaintiff needed to provide them. Instead, if he doesn't die or run out of money or patience first, TB's going to back to court with a list of his medications in his pocket, proudly mispronounce every single one, and the judge will find some other excuse that doesn't really matter.
And if judges want us to believe that, they a) need to actually write it into the public record, and b) have public records giving normal people reason to distrust them.
I think a good thought experiment here is to look at traffic tickets.
Do you think cops should have flexibility in giving a ticket or not?
Choosing not to is also abomination of due process, it is inconsistent and potentially abusable and corrupt. It's also flexible and can work out well.
The system works better for most people overall when have some flexibility in the system. Some people are screwed over by that flexibility however in my experience it's usually for good reason (in this case: guy is likely an asshole).
If you want to remove the slack and flexibility in the system you can certainly advocate for that but you'll find it probably isn't what you want in practice.
With respect to this guy specifically, I got the impression that it seemed like he had more involvement with mental health care that he was letting on and was trying to minimize which is not a good sign.
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I understand what you're saying, but you're imposing a standard on the court that simply doesn't exist. He was involuntarily committed in 1983. He's presumed unfit to own firearms. You may have a disagreement about the process that was in place before 1987, but that's not what's at issue here. The guy isn't arguing that the record should be expunged because his original commitment was invalid, it's unlikely that he would be able to prove that it was invalid due to the passage of time, and the only way such an argument would work would be in the context of a ruling that all involuntary commitments prior to 1987 are presumptively invalid on procedural grounds. But again, that's not the issue here, and the court isn't going to relitigate this on its own.
Operating from that presumption, it's T.B.'s burden to prove that he qualifies for expungement, not the court's burden to prove that he doesn't. So, yeah, the court could have subpeonaed any number of different things, but they didn't, because they're under no obligation to prove that this guy is unfit to own weapons. That's already been established, insofar as the law is concerned, and if he wants the expungement, he has to provide the evidence himself. And what evidence did he provide? His own testimony, which suffered a debilitating lack of credibility, and a note from a psychiatrist which he admitted was obtained under false pretenses. The only thing we're left with that doesn't implicate T.B's lack of credibility is his lack of criminal record, which is persuasive but not dispositive. There's no provision of New Jersey law stating that the court has to grant an expungement just because someone hasn't committed any crimes for a period of time.
There's no legal issue here. All we have is you disagreeing with the factual findings of a judge who met the guy and reviewed the entire record, which, fine, you're entitled to your opinion. But it's no different than people who disagree with a jury verdict based on news reports they saw on TV. It's a factual issue, not a legal one, and no appeals court is going to overturn a finding of fact unless the evidence is so overwhelming that the conclusion is patently unreasonable.
I'm not disagreeing with the factual findings. Literally in the post you're replying to, I said:
Indeed, the question raised by the petitioner during appeal was specifically "the trial court improperly relied on his current physical condition, age, and stated reasons for seeking expungement". While I don't think that's meritless -- I raised some statutory interpretation questions, again literally in the post that you're replying to -- I do fully recognize that there's absolutely zero chance of them being successful. Likewise, I recognize that because of the commitment's age bringing any serious challenges to would be difficult even were New Jersey and its federal circuit any less biased against gun rights, and because of the petitioner's age and the speed of New Jersey courts, any Second Amendment-related or due process legal challenges would be doomed.
My argument is that these are bad; that they defy broad rights and due process and justice, and yet can't be meaningfully challenged and won't be meaningfully recognized. We've had this distinction before.
T.B. in this case might have failed a test for expungement in a fair system, but he didn't get a fair system. Instead he got one where his rights could be taken away in an ex parte hearing with no due process or representation and standard, and to retrieve those rights he could present only limited information against an explicitly adversarial judge who could moor any denial in anything the judge wanted under any standard of evidence and using any information or no information at all. Indeed, he didn't even get a system interested in pretending to be fair, where the judge can make some handwave toward what T.B. would have to do in order to comply with the law.
There's a trivial sense where they're bad in ways that undermine all of the defenses that you entered this discussion with. But there's a more general one where it's no defense at all to say that the bad procedures are established by statute, and that the biased judges are just part of a biased system, and that there's just going to be people who fall between the awkward interactions of laws that don't mesh together, and that people simultaneously should know that any constitutional or due process arguments would actively doom whatever trivial chance their 'conventional' petition might have and that outside observers can't point to the blatant disregard for constitutional rights or due process.
There are imaginable universes where we are, as a society, so attached to legal formalism that all of these things weigh against constitutional rights, and the constitutional rights lose. There are imaginable universes where all those frictions and safety risks weigh against constitutional rights, and the same happens.
The courts can, have, and did in the last week jump over themselves to protect the rights of a murderer to 'prove' that he might have only planned and assisted with the murder of an innocent woman. The courts can, have, and did jump over themselves to defend an illegal immigrant who beat his wife and allegedly participated in human trafficking from getting deported, with everyone on the Left and their dogs and you specifically talking up the importance of due process.
We aren't in those universes. You know we're not in those universes. That this disagreement is only imaginable for matters that happen to line up with your political goals leaves any argument presented under them as below contempt.
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I feel like this isn't a case about your right to a firearm per se, but a case about your right to lie to get into a mental institution and then say "take backsies, I was just trolling" later.
As far as I can understand it, the timeline is:
In 1983, T.B. was involuntarily committed in Ancora. There's some skepticism over exactly what degree of behavior this involved (ie, TB says he was violent pre-admission and then some time later was released after questioning, Ancora wrote that he was violent after admission), but T.B. does not claim that the commitment was illegitimate or trolling.
In 2022, T.B. went to LifeStream for outpatient treatment claiming interest in treatment for anxiety (and depression?), but really wanting to get a 'I'm not crazy-crazy' note. Neither anxiety nor depression would be disqualifying for firearms purchase even if he did have them (probably. NJ's a little arbitrary here).
T.B. was not trying to undo the LifeStream visit, but to remove the records about the Ancora commitment. The court held that the standard was not just that " their illness has either "substantially improved" or is in "substantial remission" since their discharge from a mental health facility" -- which it clearly had -- but that T.B. had to actively prove that the expungement of his Ancora record was in the public interest, and as a result it was not sufficient to demonstrate he was not actively dangerous. They had evidence that the man's mental health had improved, and none that it had not, and decided that this left the question unanswered and unanswerable. They had evidence that the man was not dangerous (literally "speaks volumes about not that he’s dangerous to the public safety"); the judge ducked it because the judge determined on his own that TB might forget a safety maybe.
It's possible (even more-likely-than-not) that the courts would have been able to withhold expungement under a more serious standard focusing on dangerousness or on continuing mental illness. But the issue is that they didn't have to actually interact with that more serious standard or any standard at all, and Rov_Scam's jumping in to inform us that it's tots reasonable anyway.
EDIT: you are correct that there was no 2A analysis involved.
I think your objection may be conflating two or three issues - lack of clarity over the standard that should or was used, the connection between that standard and 2A rights, and @Rov_Scam's comment about problems with his claim the record should be expunged. It's bad that court processes can be abused to deny someone their 2A rights, but the states have other reasons for wanting this information, so the state putting the burden on the individual to get the record expunged and erring on the side of retained records makes sense. (Note: I'm not endorsing a policy of such, merely noting it's rational.) Either way, the 2A implication is incidental to the state standards, even if one is incredulous that procedures won't be abused. The comment about the problems with this specific claim would equally apply, had there been no 2A implication. It's easy to imagine a quasi-mirror scenario with 8A and a convict failing to get mental health records considered in their sentencing.
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Could you give some more context on what this is, for those unfamiliar? All I can find is a rule about financial professionals having to act in their clients' best interests.
The National Instant Criminal Background Check Systems (NICS) is a 90s-era system that (almost) all buyers of firearms have to undergo every time they buy (almost) any firearm. Despite its name, it checks not just criminal history, but also every other category under the 1968 GCA that disqualifies a person from owning (almost any) firearm, where the disqualifying incident has been reported to the FBI. While most people notice this only when buying a firearm, those who get a DQ result from NICS are on notice that they can not legally own (almost) any firearms, no matter what conditions they received them.
One lesser-known disqualification is that of those who are 'adjudicated as a mental defective or has been committed to any mental institution', which is the prong T.B. in this New Jersey case failed. However, the exact edges of those definitions are fuzzy. Most jurisdictions require some level of adversarial hearing or multiple doctors reviewing the commitment, but neither rule is part of the statute and neither have bright-line across-the-US caselaw.
While the Department of Veteran's Affairs had long held the ability to report 'mental defectives' since the 1993 establishment of NICS, and Clinton made some acts on this road, the Obama administration held that the Department of Veterans Affairs could use existing records to determine what veterans were 'mental defectives' and should do so automatically and categorically. To do so, they relied on determinations of what veterans had a fiduciary appointed to help manage their financial affairs, a process that had very low standards of evidence, a presumption of incompetence against the veteran, no due process rights to representation, did not require any qualifications or training for the administrative staff making the determination -- and, of course, did not give adequate preliminary notice that the act would strip away any Second Amendment rights. 95%+ of all "adjudicated as a mental defective" submissions to NICS from federal agencies were coming from the VA in 2013 and 2014. This ended up including hundreds of thousands of submissions.
((Continuing on a certain theme, the Obama administration based this policy's authorization on the bipartisan NICS Improvement Amendments Act of 2007.))
Most critically, veterans could and often did receive or even actively request fiduciaries solely to assist with financial affairs, not because they were dangerous or actually incompetent, such as if they wanted their spouse to have easier access to their records or VA fund. This could mean dementia or severe suicidal ideation, but because the VA was also getting eaten by paperwork in the same time period, this also could just be a matter of who in the family had the time or the patience to deal with the bullshit or, again, who could balance a checkbook.
Ostensibly, the policy was meant to reduce veteran suicide. To be charitable to the point of foolishness, I’m sure the proponents were absolutely sure that they were reducing firearms suicides (or lost guns) by making them less available to some vets. But given the near-complete disinterest in whether these disarmed vets were particularly likely to commit suicide, that’s about the best you can get, and then we’re back to the federal government treated arbitrary restrictions on a constitutional right as an unalloyed good, and these people targeted because they’d be less able to challenge it.
The Obama administration later proposed a federal regulation applying the same sort of system to Social Security and was expected to hit at least 75,000 people; this was blocked under the CRA in 2017. Some appropriations riders in 2024 and 2025 blocked the VA from using funds to submit records to NICS except where a finding of dangerousness or a court order was involved, though the last rider I'm aware of expired in March.
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