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Definition of "Danger To Yourself or Others" - FOID Act vs FCCL Statute


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I thought it would be useful to share a analysis that I have been trying to make between the established definition of "clear and present danger to the applicant, any other person or persons in the community in the FOID Act with the danger to yourself or others/are a threat to public safety which is being used by the Review Board in denying CCL applications. Given the lack of transparency with respect to Review Board deliberations obtaining some insight into this interlinkage may be the only way I am aware of to start to make some inferences. This is a work in progress...but, I am going to try to frame the issue:

 

The Firearms Owners Identification Card Act [“FOID”] 430 ILCS 65/8 provides that a FOID Card can be revoked if ISP is:

 

(“e) A person who has been a patient of a mental health facility within the past 5 years or a person who has been a

patient in a mental health facility more than 5 years ago who has not received the certification required under subsection (u) of this Section.” and

“(f) A person whose mental condition is of such a nature

that it poses a clear and present danger to the applicant, any other person or persons or the community;”

The denial language being used in connection with concealed carry license letters is is:

 

“The Board has notified the Department that it has determined by a preponderance of the evidence that you pose a danger to yourself or others/are a threat to public safety.”

 

The guidelines and determinations undertaken by the Review Board are not public record and are exempt form disclosure. The same is not true with respect to FOID Revocation Appeals. It would be very instructive to understand:

 

· Have any determinations on this topic been reached by the ISP Firearms Services Bureau based upon promulgated guidelines or some other standard. What are the internal procedures for review, etc.

 

· If there are promulgated guidelines, is there a linkage between the FOID Revocation criteria and the criteria being used by the CCL Review Board?

 

· If an individual receives a forensic psychiatric evaluation which is approved by and accepted by the Firearms Services Bureau, and does the same report guaranty a similar result with the CCL Review Board.

 

 

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from the definitions portion of the FOID act:

 

"Patient" means:

(1) a person who voluntarily receives mental health treatment as an in-patient or resident of any public or private mental health facility, unless the treatment was solely for an alcohol abuse disorder and no other secondary substance abuse disorder or mental illness; or
(2) a person who voluntarily receives mental health treatment as an out-patient or is provided services by a public or private mental health facility, and who poses a clear and present danger to himself, herself, or to others.

 

So on the voluntary admission side, we have two classes, Inpatient and Outpatient. Observation is considered to be outpatient until an order for inpatient admission is written.

 

If inpatient, the person automatically loses FOID unless they are in detox for alcohol.

 

If outpatient, there must be a determination that the person is "a clear and present danger to himself, herself or to others."

 

this is defined in the FOID law as:

"Clear and present danger" means a person who:
(1) communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to himself, herself, or another person as determined by a physician, clinical psychologist, or qualified examiner; or
(2) demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior, as determined by a physician, clinical psychologist, qualified examiner, school administrator, or law enforcement official.

 

 

IANAL but it reads such that the hospital was in the wrong for reporting an "admission" while the patient was in an outpatient status unless there was a determination of "clear and present danger" by a physician, clinical psychologist or qualified examiner (as defined by ch 1 of mental health and developmental disabilities code). The state would also be in the wrong as they revoked a card based on incorrect reporting.

 

I realize that this isn't the way things have been working, but can anyone point out how my logic here is flawed?

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Very simple and pragmatic.. ANY VOLUNTARY ADMISSION IS REPORTED PERIOD. Full stop..that is how the law is being applied without exception. Unless and until you have direct and verifiable practical experience based upon the application of the law please label your comments as such. I can attest to and back from documentation how its being applied PERIOD. The inpatient admit was made without regard to the "clear and present danger definition"

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Elmer I must concur with Jlorie as if you go in as an "outpatient" you can only have your FOID card revoked if that outpatient visit also results in the patient making serious threats of violence. if you read how the statute is written, it seems confusing but the key word is "and" and that means simply being an outpatient does not result in revocation of your FOID card. If you don't believe me, call ISP and they will back up what I am saying, They are only looking for those that went in overnight as in inpatient. Mental health facilities and I am talking outpatient ones, schools, they only have to report if you the patient is making threats. If you go in for treatment like ADD you are fine. The outpatient is only required to report you if you make threats by law. That said, if the hospital sent you to psyc ward, the doctor either didn't understand the implications because he could only send you there if he felt you were a danger .

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I also wanted to add, what about the charity hockey game in NY involving a huge brawl between NY firefighters and police? I feel regardless of any circumstances, both teams fighting definitely warrants a denial of an Illinois CCW as each team member that assaulted another player, committed an act of violence that definitely fits the description of a clear and present danger.

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Once again....the purpose of this threat is a focus on the definitions in the statute and related administrative pronouncements and judicature not really on the facts of an specific individual's case. The very simple issue is this....if a patient is already in the hospital be it in an ICU or a medical ward and they are transferred to a psych ward that is classified as an inpatient admit for ANY reason. I am not necessarily referring to an admit from the outside that came from the emergency room, there may be a very limited exception for someone being held for observation. The specific diagnosis is secondary to the matter. The concern really is NOT on how you got there....assume that the person got there and they were reported. The thrust of the discussion here is once you have been reported what are criteria to be presented, how is the evaluation performed, and over what time line to overcome the presumption of "danger to oneself and others".

 

Once a person has been flagged and had a FOID revoked or a CCL denied, I doubt it is going to do much good to try to argue that whomever initiated the report didn't do something properly. The task at hand is going to have to be to refute the assertion of being a danger to oneself of others.

 

 

The following discussing is expressly contained within the FOID Revocation materials and as such should NOT be assumed to be equally applicable to an FCCL Review Board Denial. There is scant guidance in the available statute with regard to what constitutes a proper "forensic psych evaluation"...the requirements for the contents of such evaluation are described by ISP in the letter which accompanies the notice of revocation explaining the revocation hearing procedure as as:

 

"As required in Section J of the Minimum Documentation Form. you must provide:

A cutTent (within 45 days), forensic evaluation or original letter from a psychiatrist or

licensed clinical psychologist which must fulfill the following requirements:

a. It must be from a treatment provider not affi liated with your employer.

b. It must include your full name and date ofbinh on each page of the document.

c. The treatment provider must sign and date the evaluation or letter and include

their professional license number.

d. The provider must give a specific statement indicating they have reviewed records

from ALL prior psychiatric admissions, hospitalizations and treatment.

e. [t must include a list of all prior psychiatric hospitalizations and referrals, to

include all incidents or suicidal or homicidal ideations.

f. List of treatment that has been provided and compliance with that treatment. to

include current treatment.

g. Any past or current substance or alcohol abuse/dependence.

h. Procedure followed by treatment provider when completing the evaluation.

1. Current Axis l and Axis ri diagnosis.

j. Current psychotropic medications prescribed and risks associated with

discontinuation of medication.

k. The treatment providers professional opinion as to whether or not you present a

risk of harm to yourself or others and whether you are mentally fit to acquire,

possess and use firearms."

 

 

The requirement explicitly note "(Note: letters from therapists - e.g., professional counselors and social workers - will be considered, but do not fulfill this

requirement.)

Once again, the information I have pulled together here is still a work in progress and I am not suggesting that an absolute conclusion has been drawn. I am hopeful that the background in formation being in one place may help anyone else that has had some experience to help contribute to the discussion.

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Very simple and pragmatic.. ANY VOLUNTARY ADMISSION IS REPORTED PERIOD. Full stop..that is how the law is being applied without exception. Unless and until you have direct and verifiable practical experience based upon the application of the law please label your comments as such. I can attest to and back from documentation how its being applied PERIOD. The inpatient admit was made without regard to the "clear and present danger definition"

 

 

... I realize that this isn't the way things have been working...

 

Elmer - I understand you are going through a tough time with this and i hope you get the best outcome possible. Thanks for bringing awareness to the issue; when you are ready to have a public conversation about how the law should work vs how it is applied I'll be happy to partake.

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Let me try to refocus again. I am not seeking to address anything here related to what is going on in the hospitals or with the reporting . That is its own animal. My specific intention here is to focus on how the appeal process is handled. There are no published guidelines under 430 ILCS 65/10,11. I have a FOIA filed on that. The specific point I am seeking to flush out is to give people that get an FCCL denial how they might respond. This has absolutely nothing to do with my situation.
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Posted · Hidden by Molly B., April 8, 2014 at 12:02 PM - No reason given
Hidden by Molly B., April 8, 2014 at 12:02 PM - No reason given

Elmer, my guess is a reason no published guidelines are made for people who get revoked for going in as an inpatient is because the statute is indeed vague and most good lawyers will agree that is why cases have to go to court so the judge can decide and make the interpretation. I also have to assume that if you are in the hospital as an inpatient, then they do have good cause to revoke you because at that time, regardless if you don't make any verbal threats, if you are incapable of understanding the actions of what you are doing because of medication that makes you feel a certain way, they have to be sure you are safe to go back to society. What if they did all the testing, and released you without observation? Then the meds you were on caused you to feel rage, extreme depression, who knows but for liability is it possible they had no choice but to keep you in a psych ward for observation? You did mention you almost died in the hospital and that you went through gross extremes to stabilize you. That said, the only conclusion I can think of is the judge is leaning towards caution and Generally they tend to take cases from other states and base their decisions on that bases. What I am saying is just a guess and there is no way to know exactly how they came to that conclusion.

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Posted · Hidden by Molly B., April 8, 2014 at 12:02 PM - No reason given
Hidden by Molly B., April 8, 2014 at 12:02 PM - No reason given

Elmer, my guess is a reason no published guidelines are made for people who get revoked for going in as an inpatient is because the statute is indeed vague and most good lawyers will agree that is why cases have to go to court so the judge can decide and make the interpretation. I also have to assume that if you are in the hospital as an inpatient, then they do have good cause to revoke you because at that time, regardless if you don't make any verbal threats, if you are incapable of understanding the actions of what you are doing because of medication that makes you feel a certain way, they have to be sure you are safe to go back to society. What if they did all the testing, and released you without observation? Then the meds you were on caused you to feel rage, extreme depression, who knows but for liability is it possible they had no choice but to keep you in a psych ward for observation? You did mention you almost died in the hospital and that you went through gross extremes to stabilize you. That said, the only conclusion I can think of is the judge is leaning towards caution and Generally they tend to take cases from other states and base their decisions on that bases. What I am saying is just a guess and there is no way to know exactly how they came to that conclusion.

Without responding to this a line at a time this thread was NOT intended to have ANYTHING to do with my situation whatsoever...you don't know the specific background and are speculating WILDLY....its off topic. I am going to try to stick to my intended subject in the thread and am not responding to your comments respectfully as they aren't relevant here.

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Elmer, my guess is a reason no published guidelines are made for people who get revoked for going in as an inpatient is because the statute is indeed vague and most good lawyers will agree that is why cases have to go to court so the judge can decide and make the interpretation. I also have to assume that if you are in the hospital as an inpatient, then they do have good cause to revoke you because at that time, regardless if you don't make any verbal threats, if you are incapable of understanding the actions of what you are doing because of medication that makes you feel a certain way, they have to be sure you are safe to go back to society. What if they did all the testing, and released you without observation? Then the meds you were on caused you to feel rage, extreme depression, who knows but for liability is it possible they had no choice but to keep you in a psych ward for observation? You did mention you almost died in the hospital and that you went through gross extremes to stabilize you. That said, the only conclusion I can think of is the judge is leaning towards caution and Generally they tend to take cases from other states and base their decisions on that bases. What I am saying is just a guess and there is no way to know exactly how they came to that conclusion.

Without responding to this a line at a time this thread was NOT intended to have ANYTHING to do with my situation whatsoever...you don't know the specific background and are speculating WILDLY....its off topic. I am going to try to stick to my intended subject in the thread and am not responding to your comments respectfully as they aren't relevant here.

 

 

I'm not sure ANYONE at this point knows what you're talking about.

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The point I had originally sought to focus on is this

 

I have been trying to make between the established definition of "clear and present danger to the applicant, any other person or persons in the community in the FOID Act with the danger to yourself or others/are a threat to public safety which is being used by the Review Board in denying CCL applications. Given the lack of transparency with respect to Review Board deliberations obtaining some insight into this interlinkage may be the only way I am aware of to start to make some inferences.

 

The reason I raise it is that there have been people getting CCL denial letters from the Review Board which cite the phrase that the person is a "danger to themselves and the community" and there is no transparency to the Review Board's deliberations. I was seeking to offer a comparison to help people develop an approach to responding to those denials....that simple....nothing to do with me specifically. Hope that clarifies.

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The point I had originally sought to focus on is this

 

I have been trying to make between the established definition of "clear and present danger to the applicant, any other person or persons in the community in the FOID Act with the danger to yourself or others/are a threat to public safety which is being used by the Review Board in denying CCL applications. Given the lack of transparency with respect to Review Board deliberations obtaining some insight into this interlinkage may be the only way I am aware of to start to make some inferences.

 

The reason I raise it is that there have been people getting CCL denial letters from the Review Board which cite the phrase that the person is a "danger to themselves and the community" and there is no transparency to the Review Board's deliberations. I was seeking to offer a comparison to help people develop an approach to responding to those denials....that simple....nothing to do with me specifically. Hope that clarifies.

 

Yeah, that clears the question up. But isn't the best course of action simply to subpoena the evidence from the Board during the appeal? The rest is just speculating.

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The point I had originally sought to focus on is this

 

I have been trying to make between the established definition of "clear and present danger to the applicant, any other person or persons in the community in the FOID Act with the danger to yourself or others/are a threat to public safety which is being used by the Review Board in denying CCL applications. Given the lack of transparency with respect to Review Board deliberations obtaining some insight into this interlinkage may be the only way I am aware of to start to make some inferences.

 

The reason I raise it is that there have been people getting CCL denial letters from the Review Board which cite the phrase that the person is a "danger to themselves and the community" and there is no transparency to the Review Board's deliberations. I was seeking to offer a comparison to help people develop an approach to responding to those denials....that simple....nothing to do with me specifically. Hope that clarifies.

 

Yeah, that clears the question up. But isn't the best course of action simply to subpoena the evidence from the Board during the appeal? The rest is just speculating.

 

Dr. Rat.....my understanding is that the deliberations of the board are EXEMPT from disclosure under FOIA and subpoena and as such the information won't be forthcoming that was a substantial part of the reason why I raised the issue.

 

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Instructions for "Clear and Present Danger" reporting form:



https://www.isp.stat...sent-danger.cfm



In general the form is to report someone who "demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions" but that could be subjective and include "other behaviors they may be determined to pose a clear and present danger. So that is a bit vague and circular - a form that is supposed to provide guidance as to what constitutes a clear and present danger includes in it's description other behaviors they may be determined to pose a clear and present danger.



Here is the actual form:



https://www.isp.stat.../docs/2-649.pdf



I think the main point is that it can only be filed by law enforcement or a school official.


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There is a difference in what constitutes "Clear and present Danger" for FOID and what constitutes "Clear and present Danger" for CCL.

I agree...and so I would ask for help in explaining what that difference is....and then how does one overcome the assertion under FOID and CCL. We should be able to get clarification under FOID though there doesn't seem to be anything published since 430 ILCS 65/8(e) was modified last summer. It is much more difficult to ascertain how one does that under CCL an people are getting denial letters from the Review Board that don't cite a reason for the determination.

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It is very vague, theoretically you could lose your CCL due to losing your FOID. like a domino effect. In addition to using the FOID appeals process, you could find yourself before the CCL board and because of a lack of guidelines and uniformity in how these things are supposed to be decided, you could have your FOID reinstated, but not your CCL even though in both cases the same incident and he same evidence would be reviewed.

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It is very vague, theoretically you could lose your CCL due to losing your FOID. like a domino effect. In addition to using the FOID appeals process, you could find yourself before the CCL board and because of a lack of guidelines and uniformity in how these things are supposed to be decided, you could have your FOID reinstated, but not your CCL even though in both cases the same incident and he same evidence would be reviewed.

Ding Ding Ding....now you are zeroing in on an example of what I think needs to be fixed. An example, if a person goes through the process of submitting a FOID Revocation Appeal and prevails that should hold for CCL purposes. There are no published guidelines for FOID Revocation Appeals and I have a FOIA pending on that exact topic. The point we are zeroing in on here is that this is an area that is SCREAMING to have clarification made and it may require legislative action. Besides the importance of anyone impacted by the provision being able to have certainty over how both appeal processes work there is another issue. Assuming that we all agree that ANYONE that owns firearms that has a real need for mental health treatment should be willing to seek that help without the added burden of the fear of an unclear and confusing path to recover their firearms. That is a recipe for disaster...it could be the cause of a person that would really benefit from treatment being unwilling to seek it out. If that is happening it hurts the individual, those of us that support the 2A and the public. There needs to be clarity in this process both for it to be fair, and for the underlying purpose of the provision to work properly.

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I have been trying to make between the established definition of "clear and present danger to the applicant, any other person or persons in the community in the FOID Act with the danger to yourself or others/are a threat to public safety which is being used by the Review Board in denying CCL applications. Given the lack of transparency with respect to Review Board deliberations obtaining some insight into this interlinkage may be the only way I am aware of to start to make some inferences.

 

The reason I raise it is that there have been people getting CCL denial letters from the Review Board which cite the phrase that the person is a "danger to themselves and the community" and there is no transparency to the Review Board's deliberations. I was seeking to offer a comparison to help people develop an approach to responding to those denials....that simple....nothing to do with me specifically. Hope that clarifies.

Yeah, that clears the question up. But isn't the best course of action simply to subpoena the evidence from the Board during the appeal? The rest is just speculating.

 

Dr. Rat.....my understanding is that the deliberations of the board are EXEMPT from disclosure under FOIA and subpoena and as such the information won't be forthcoming that was a substantial part of the reason why I raised the issue.

 

 

Maybe. I know they're exempt from FOIA requests, but I haven't seen anything that states the relevant records can't be subpoenaed for the appeal.

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you could have your FOID reinstated, but not your CCL even though in both cases the same incident and he same evidence would be reviewed.

 

That's because the FCCA has more stringent criteria than the FOID act. It's why everyone denied a CCL doesn't automatically have their FOID revoked.

 

CountZero said "There is a difference in what constitutes "Clear and present Danger" for FOID and what constitutes "Clear and present Danger" for CCL."

 

Now that we have that on the table......can someone help to clearly explain the difference in criteria both for revocation and reinstatement. I have looked and it isn't straight forward.

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you could have your FOID reinstated, but not your CCL even though in both cases the same incident and he same evidence would be reviewed.

 

That's because the FCCA has more stringent criteria than the FOID act. It's why everyone denied a CCL doesn't automatically have their FOID revoked.

 

CountZero said "There is a difference in what constitutes "Clear and present Danger" for FOID and what constitutes "Clear and present Danger" for CCL."

 

Now that we have that on the table......can someone help to clearly explain the difference in criteria both for revocation and reinstatement. I have looked and it isn't straight forward.

 

 

The FCCA doesn't require the danger to be "clear and present". What the legal difference is, I'm not sure. My guess is that it is just what it sounds like - well-articulated and ongoing threats or actions.

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Once again...back to the point I have been trying to make...the definitions aren't clear. The definition is used to take away someone's rights..the legal standard needs to be objective, clearly defined and understood. It can't be left vague and unclear. The point that I have been trying to make is that the law was hurried into place for both the mental health change under FOID and FCCL. The standards for revocation and reinstatement have NOT been clearly articulated either in the statute or by regulation and there is no body of judicature. The point I am seeking to stress is that this represents an area where clarification is urgently needed. I am not entirely whether it needs a legislative fix, or if this can be done by regulation or engaging with ISP.

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My guess is that it is just what it sounds like - well-articulated and ongoing threats or actions

 

.

That sounds good but the even the definition on the form leaves wide latitude.

 

​I could go to school and speak angrily to a teacher about my child being picked on and demand action. The administrator who doesn't appreciate my anger or tone of voice can file a "Clear and Present Danger" form.

 

Even if there were no threats of violence or talk of suicide the form could be populated with the administrator's opinion of "other behaviors they may be determined to pose a clear and present danger" - me speaking angrily and they supposedly feeling threatened.

 

Now you're done.

 

Instead of refuting facts - whether or not there were threats made or talk of violence or suicide, you're instead debating someone's perceptions.

 

You've lost your FOID and you've lost your CCL.

 

The thing whole thing is completely devoid of the principles of due process.

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My guess is that it is just what it sounds like - well-articulated and ongoing threats or actions

 

.

That sounds good but the even the definition on the form leaves wide latitude.

 

​I could go to school and speak angrily to a teacher about my child being picked on and demand action. The administrator who doesn't appreciate my anger or tone of voice can file a "Clear and Present Danger" form.

 

Even if there were no threats of violence or talk of suicide the form could be populated with the administrator's opinion of "other behaviors they may be determined to pose a clear and present danger" - me speaking angrily and they supposedly feeling threatened.

 

Now you're done.

 

Instead of refuting facts - whether or not there were threats made or talk of violence or suicide, you're instead debating someone's perceptions.

 

You've lost your FOID and you've lost your CCL.

 

The thing whole thing is completely devoid of the principles of due process.

 

 

Perhaps. I don't really see the ISP revoking your FOID in that situation if there are no threats or talk of violence or suicide - unless someone was clearly out of touch with reality. Even if they did, you'd be able to appeal the decision with your side of the story.

 

Some aspects of the law require some subjectivity to allow for flexibility. You can't list every example in which someone is a danger any more than you can list every example of probable cause.

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Ding Ding Ding....now you are zeroing in on an example of what I think needs to be fixed. An example, if a person goes through the process of submitting a FOID Revocation Appeal and prevails that should hold for CCL purposes. There are no published guidelines for FOID Revocation Appeals and I have a FOIA pending on that exact topic.

 

IANAL.....

 

I'm thinking this. Someone gets their FOID revoked due to "clear and present danger" and gets their CCL revked because they don't have a valid FOID. The reason for the CCL revocation is "no valid FOID"

 

Then once the FOID is reinstated on FOID appeal, the CCL revocation can be appealed based on the fact that one now has a valid FOID. One doesn't have to go through the same argument for both hearings, just do it once, show valid FOID for second hearing.

 

Now if the FOID is revoked for "clear and present danger" and then the CCL is revoked because of that same reason, then that means one has to go through re-presenting the same rebuttal again.

 

It all depends on what the reason for revocation is.

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