In Washington, restoring firearm rights which were lost due to an involuntary commitment for mental-health care can be a real challenge. It turns out to be much more difficult than restoring firearm rights lost due to a criminal conviction. Under either scenario, the person seeking restoration of rights must apply to a Superior Court. This similarities end there.
However, the larger challenge is that even if a Washington Superior Court order restores firearm rights following a mental-health commitment, federal authorities will not recognize the person’s right to possess firearms, and are likely to deny any request to purchase a firearm. Worse news: No procedure is available under federal law to restore firearm rights.
When a person seeks restoration of firearm rights following an involuntary commitment, a judge must restore firearm rights if the person proves the following:
- The person is no longer required to participate in court-ordered inpatient or outpatient treatment.
- The person has successfully managed the condition related to the commitment.
- The person no longer presents a substantial danger to himself or herself, or the public.
- The symptoms related to the commitment are not reasonably likely to recur.
The law (Revised Code of Washington Section 9.41.047) does not state what sort of evidence must be presented to prove these facts. When clients in this position have requested my assistance, I have recommended that they obtain a mental-health examination, and have the treatment provider provide an affidavit attesting to those four factors and endorsing the person’s request for restoration of firearm rights. We file the treatment provider’s affidavit in court along with the request for restoration of rights. I doubt that a judge would accept anything less.
But remember, federal authorities will not recognize that Washington Superior Court order, and will continue to regard that person as prohibited under federal law from firearm possession.
A case now making its way through the federal court system may offer some relief for this situation. The case, Tyler v. Hillsdale County Sheriff’s Department, was decided in September 2016 by the 6th U.S. Circuit Court of Appeals, and has been remanded to the U.S. District Court for the Western District of Michigan for further proceedings.
Here is what happened: A Michigan probate judge committed Tyler briefly for mental-health care in January 1986 after Tyler’s wife dumped him, drained their bank accounts, served him with divorce papers, and ran away with another man. Tyler received two to four weeks of inpatient care at a mental-health hospital. Following his release he worked for more than 18 years, remarried in 1999, and “repaired his relationship with his ex-wife,” according to the court decision.
In other words, Tyler’s mental health was restored. And in a 2012 psychological evaluation, Tyler’s doctor expressed that opinion. But because of the 1986 commitment, NICS stopped Tyler from purchasing a firearm. Tyler sued.
When the case finally came before the 6th Circuit, the court held that Tyler had a viable claim for infringement of his Second Amendment rights because the government had not justified a lifetime ban on firearm possession based only on a history of involuntary commitment.
The Circuit Court sent the case back down to the District Court for further proceedings, which are pending (as of May 2017). At the District Court, the government is challenged to justify the restriction on Tyler’s firearm rights by showing either (1) additional evidence explaining the necessity of a lifetime ban for anyone with a history of involuntary commitment, or (2) evidence showing that Tyler would be a risk to himself or others if permitted to possess a firearm.
The Tyler case may eventually reach the U.S. Supreme Court for final resolution. But that will not happen any time soon.
For residents of many states, the situation faced by poor Mr. Tyler in Michigan, and by similarly situated Washington residents, simply does not apply. A majority of states have implemented restoration-of-rights procedures designed to satisfy federal criteria set forth in the NICS Improvement Amendments Act of 2007. Restorations in those states, under those procedures, are recognized by NICS. Washington and Michigan are among the few states lacking a federally compliant procedure for restoring firearm rights impaired by a history of involuntary commitment.
Maybe it is time for a change.