Posted on 04/18/2007 1:55:30 PM PDT by Ben Mugged
Thanks. VA law is less restrictive than fed law. See #180.
Fed law doesn't care about that. It cares about, adjudicated a danger to self, or others, because of mental defect.
The ATF is not the controlling legal authority.
I think if you consult lawyers specializing in mental health law you will find that an evaluation order is not considered an “adjudication of mental defect” for the purposes of either federal or state law, but a mere 1st step toward it. Because he was released with a diagnosis of depression with medication prescribed the 2nd step never occurred.
Seriously, you can get kicked in the head by a horse, act strangely and wind up with a Temporary Order. When you recover, would you like to discover that your ability to purchases and own firearms is now restricted?
They are as far as fed firearms law goes and the definition and meanings of the words in the law goes.
"I think if you consult lawyers specializing in mental health law you will find that an evaluation order is not considered an “adjudication of mental defect” for the purposes of either federal or state law, but a mere 1st step toward it."
If the court's determination is that the person is a danger to himself, or others, due to mental defect, that's all that's important to render the relevant meaning regarding 27CFR178.11 and 18USC922(g)(4). 28CFR25.3 says the States voluntarily submit the info. Any atty's specializing in mental health have no authority to define the terms and apply meaning to those terms in 27CFR178.11 and 18USC922(g)(4). The ATF is the agency in charge of fed firearms laws and directs relevant collections in the DOJ's NICS database. According to 28CFR25.3, VA was not required to submit the court record regarding the danger Cho presented to himself, due to mental defect, and the chief LEO contacted in VA regarding the transfer in VA, considered VA law only, not fed law. Judge Burkett's comments were the same and regarded VA, not fed law.
"Because he was released with a diagnosis of depression with medication prescribed the 2nd step never occurred."
By that I assume you mean involuntary committment under VA law. It doesn't matter. Cho was adjudicated as a danger, due to mental defect by a court of law in VA. That's a fed disqualifier under 18USC(g)(4).
"Seriously, you can get kicked in the head by a horse, act strangely and wind up with a Temporary Order."
Not really. Those matters never go to court. You end up in court for committing criminal acts and the authorities involved note problems. If your adjudicated with a mental defect in the process, you can have the fed disability removed, by going through the appropriate fed remedy after the head's fixed. In Cho's case he was charged with stalking 2 girls under VA criminal law, and the authorities noted he needed some head work.
"It is anticipated that most records in the NICS Index will be obtained from Federal agencies. It is also anticipated that a limited number of authorized state and local law enforcement agencies will voluntarily contribute records to the NICS Index. Information in the NCIC and III systems that will be searched during a background check has been or will be contributed voluntarily by Federal, state, local, and international criminal justice agencies."
H.R.4757.EH(the link given) that I commented on in #175 never passed into law. It just passed the house. That bill required the States to submit all State records relevant to any of the fed firearm law disqualifiers to the DOJ for them to stick in the NICS database. 28CFR25.4 still applies, and submission of records to the DOJ for NICS inclusion is still voluntary. The relevant Chief LEO in the State of the transferee, must respond during the Background check with all info regarding State law.
It will, as will any voluntary (or involuntary comitment) for anything. Essentially to get the FOID restored you convince the State Police you've met the recomendations of your release. I understand the police unions are adept at getting this done in short order, you or I it would likely take some time and probably a lawyer. A few years ago I printed a story of a state employee, tax auditor of some sort as I recall, who was required to carry a firearm on the job under certain circumstances. Didn't jump on the FOID thing immediately after alcohol rehab, and ended up losing her job. That always has struck me as stupid. Danger to oneself or others makes sense, but addicts shouldn't be deterred from treatment.
I always assumed the federal standards were the same. Reporting is a no brainer, the info should be in the database.
While I’m not a big fan of databases, but I think they’re necessary in this instance.
Yes, they should be for fed disqualifiers like Cho had. It could be a big hassle for state disqualifiers such as IL imposes. Then if the person flees IL and lives elsewhere for some time, they'll have a hastle over it.
"It will, as will any voluntary (or involuntary comitment) for anything."
IL has paperwork for that you must sign for voluntary and it includes notice regarding the FIOD. The State Police send a letter after they're notified telling the person to send it back, or rip it up. If the alcohol program is outpatient, I wouldn't think it would apply. Does it? I could see a smoking sessation program as a problem in IL. LOL!
Right. The fed disqualifier requires a court action though. Entirely voluntary treatment is not a fed disqualifier. Docs and others would have to force a court action to get a fed diaqualification.
Commitment, voluntary or involuntary, so outpatient treatment is OK. Don’t know about smoking, but there are inpatient programs for things like eating disorders. Obviously if you’re too fat or thin, you shouldn’t own a gun. Daley logic. Illinois keeps pretty good track of these things, but state disqualifers are obviously the states problem.
Yes, really! Anyone could claim you have been acting bizarrely and threatened them or yourself and get a temporary order for evaluation/observation. All you have to do is convince a judge on your say so. It does happen.
That’s why temporaries are specefically exempt from NICS. They are not a full adjudication of mental defect, just the first step in one.
And no the ATF is NOT the controlling legal authority in interpreting the meaning of laws.
No.
"All you have to do is convince a judge on your say so. It does happen."
Not to my knowlege. There must be evidence other than a mere accusation.
"That’s why temporaries are specefically exempt from NICS. They are not a full adjudication of mental defect, just the first step in one."
I've already posted evidence, that all it takes is a judge to declare one is a danger to himself, or others, due to mental defect. That was done in this case. It's all plain English. Since that isn't enough, define and elaborate on "adjudication of danger to oneself, or other due to mental defect".
"And no the ATF is NOT the controlling legal authority in interpreting the meaning of laws."
They are part of the executive branch of fed gov that executes the law, they have the legislature's words, they look at meanings held by other exec depts, and court cases. That was all given in my posts above, plus a link to there own words on the matter. The ATF certainly knows what the phrase means and they are the executive authority responsible for administering and enforcing the law.
Your knowledge is limited. There is a thread on FR about a christian college student who was commited on the say so of a college president. He is suing.
Get a clue, a temporary order is not an “adjudication”. It is the first step toward one being made.
A judge cannot adjudicate someone mentally ill without a psychiatric evaluation and has no way of getting a psychiatric evaluation of an unwilling person except to make a temporary order.
BTW “someone’s say so” is evidence. It’s called testimony and is used every day in courts and it’s notoruisly bad in the case of eyewitness testimony and not much better in the case of many experts.
Which is why a temporary order is not an ajudication, it’s based on minimal evidence like a warrant, basically the say so of the cop requesting it, who is basing his testimony on the complaints of citizens.
Link? A committment never rests on the word of a non-professional witness. It rests on the word of physicians. The person must also have the benefit of an atty to represent them.
"a temporary order is not an “adjudication”. It is the first step toward one being made."
Wrong. The order is irrelevant, the court's finding is not. The finding and ruling made by the judge said, Cho was a danger to himself, due to mental defect. The order was to be evaluated and take treatment. Fed law doesn't care about the order, only the finding.
"Which is why a temporary order is not an ajudication, it’s based on minimal evidence like a warrant, basically the say so of the cop requesting it, who is basing his testimony on the complaints of citizens."
The complainants, police, and the judge thought Cho was a danger to himself. The evidence was not only the stlking, it was the testimony of the professional who signed the same ruling the judge did. Cho provided his own evidence, see the doc's comments on the ruling. See Cho was already examined by a doc, before the judge made the ruling, and Cho had the benefit of counsel. The ruling was valid and it disqualified him from engaging in any firearm transfer under fed law.
I hope this is helpful.
I am not a mental health professional and Valpal1 is. So please correct me if I'm wrong. I think what we can learn from this terrible tragedy is the following:
We now know he was diagnosed as autistic in childhood. Where on the autism spectrum he fell, we don't know, but he must have been fairly high-functioning if he managed to graduate from high school and spend four years in college. Link: http://www.freerepublic.com/focus/f-news/1820543/posts
And, according to the above article:
"Both his parents knew he had mental problems but they were poor and they couldn't send him to a special hospital in the United States.
"His mother and sister were asking his friends to help instead.
"His parents worked and did not have time to look after his condition and didn't give him special treatment.
"They had no time or money to look after his special problem even though they knew he was autistic."
Okay, so now we know he was autistic. We know he got no help with that. He was simply mainstreamed through school and then college. From another news article on FR, we also know that he was picked on and made fun of in high school.
Here was a little boy locked inside himself, unable to relate to others, constantly ridiculed and constantly frustrated. He was never given any help in dealing with his disorder.
Is it kind to these children (and to their classmates) to just mainstream them through the public school system with absolutely no support system, no counseling, no guidance, nothing? What are they doing with all that money for special ed?
And then just ship the kid off to college, still with no socialization or coping skills, to live in a co-ed dorm with strangers for roommates? And still with no counseling or support system at the college? Is it all that surprising he went off the deep end?
Am I off here, or is something terribly wrong with the way this kid was mainstreamed through the educational system, including university, with no help whatsoever? It seems terribly unfair to the kid and to his classmates, even if he had remained merely "creepy" and "disruptive" rather than turning into a mass murderer. I just don't get it.
Re: Cho
" We now know he was diagnosed as autistic in childhood."
They were wrong. Cho had a schizoid personality since very early childhood. He developed a notable paranoia probably sometime around say 12-15. That developed into schizophrenia in recent years. He was a paranoid schizophrenic when he was stalking. His g/f "jelly" was a schizoid fantasy.
"Here was a little boy locked inside himself, unable to relate to others, constantly ridiculed and constantly frustrated. He was never given any help in dealing with his disorder."
That's correct. The paranoia that developed in the schizoid personality was most likely due to taunts and such he received after he began to attend school here in the US.
"Is it all that surprising he went off the deep end?"
No. That was inevitable w/o help. I'm amazed the college had no one with a clue, but having seen some psych dept profs, and practicing psychologists, I can understand. He really needed someone good, and I'd say the best bet would have been a psychiatrist.
"is something terribly wrong with the way this kid was mainstreamed through the educational system, including university, with no help whatsoever?"
Schizoid personalities are simply withdrawn, introverted, solitary with flat affect, that prefer their own thoughts. This was Cho's personality. The treatment he got in the schools most likely led to the paranoia. His personality itself was not that of a paranoid, it remained schiz, with increasing amounts of paranoia. The delusions and problems with rational thought came recently, maybe ~18-20y/o. The onset is usually gradual.
I knew a few schizoids. One was in childhood and he later went on to schizophrenia. He needed a phychiatrist to take care of him. I befriended another in college. No eye contact at all. When he walked by someone, he would literally duck his head and try to hide. He left after a year, or so but was much better off having lived with us in the zoo. He really opened up after I told the other animals to lay off and partied with the guy. His self confidence, sense of worth, and general state of happiness really improved.
I think Cho never had anyone who was able to relate to him. He certainly couldn't relate with others by himself. If one can't relate/read and communicate with him, then all they can do is make up stuff and call him nuts. It's seems even the doc the court sent him to couldn't relate and ID his problem. In schizophrenia, the mind can't function as a rational machine, delusions are present and emotions tend to occur inappropriately and randomly. His g/f "jelly" is a typical schizoid fantasy. Since they can't relate with folks, especially girls, they create them.
What he really needed was a psychiatrist. I've found them to be very fast and good. My general experience with psychologists is that they are not very good, especially when it comes to folks like this. Counselors, and social workers are generally incompetents, that do nothing except aggravate, waste time and communicate with themselves.
See if the U personnel really did that to Marcavage, they'd never have been able to lose the suit in court. I don't have to know PA law any more than to know the pres. and the other guy committed battery, no criminal charges were filed, by either party ect... I will say that Marcavage was doing very annoying and risky things, on his own, with no friendly witness(s). It's his word against theirs, the atty says the appeal's a sure thing(after the suit was a sure thing).
IMHO, whether he was schizoid or autistic, where it all went wrong was
(1) Mainstreaming the kid through the public school system with no help and no support system. There,he was tormented by the other kids (and probably a torment to himself), he was a distraction to the other students, and he was most likely a persistent problem to his teachers. He would have been better off in a “short school bus” setting, no? I would love to know the rationale for mainstreaming this kid through the public school system with absolutely no help or support for him.
(2) Admitting him to a university where he still had no help and no supervision. If the state legislature is going to mandate that the mentally ill be allowed to attend the state’s universities, then those universities need to have some sort of system in place to deal with them, to see they are supervised and getting the help they need.
I see no problem with universities having special requirements for a student who has been identified in the public school system (and he MUST have been so identified, right?) as autistic or schizoid or whatever, in other words identified as having severe difficulties such as Cho had.
One of those requirements should be that the student keep regular appointments with a psychiatrist and/or other appropriate mental health professionals. They should be required to sign an agreement that the mental health professional can release information about whether appointments are being kept to the school counselor.
If appointments are not being kept (unless a psychiatrist has ruled that the student no longer needs any help), then the student can be expelled. Additional requirements might be that the student keep regular appointments with the school counselor. Professors who noted problems with the student could pass the information along to the counseling office to be addressed in the weekly sessions and provide a mechanism for the psychiatrist of record to be informed.
I realise that counselors are often not up to snuff and the accreditation process for them is way too lax. Still, at least this would ensure that the students get some sort of help. That way, the mentally ill who are getting treatment could attend college. Those who refuse treatment would either never be admitted or would be expelled. Sure, in such a circumstance, Cho probably would have massacred other people in some other place. With no help, he was a walking time bomb. There simply is no answer for that, I suppose.
It seems there was no one single person or office at the university keeping tabs on Cho. Now, after the fact, the whole story comes out: he was deeply troubled since early childhood, he was diagnosed as autistic (maybe in error, but he was diagnosed with something serious requiring help he never got), the stalking accusations, the disruptions in class with picture-taking and whatnot, the disturbed writing, etc.
To me, the biggest red flag is the fire in the dorm room he supposedly set. For some reason, he was never formally charged with that. They could not prove it? That one is a mystery.
I wonder how many other Chos are being mainstreamed through the public school system with no help? I know it would be hard to determine which kids should be held to such an admittance policy. I wouldn’t want to see kids who were once diagnosed as “hyperactive” or those with mild learning disabilities forced into this process. Maybe there is no answer.
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