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Voluntary Mental Health Admits and FOID Revocation 430 ILCS 65/8(e)


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I apologize for what might be construed as a duplicate posting. My intention in doing so is that given the potential impact of this topic, perhaps it should become a "sticky" so everyone is aware of it.

 

I have posted at several points regarding my having gotten caught in the “trap” which is related to the provision of the FOID Act which applies to the voluntary admission to a mental health facility, which includes the psych dept. of a regular hospital. My assumption is that most everyone has heard something about the provision, though I haven’t seen a thorough discussion of the topic in one place. My intention in pulling this post together and combining both the statute and my own experience is to highlight a situation that could very easily apply to any individual that has a FOID Card. The consequences of having the provision can be devastating and it is clear that neither the legislature nor ISP has worked out a mechanism such that a person affected by the provision has a path to regain their rights. My own view is that it may require a legislative correction, the issuance of regulations, or at the very minimum, the development and publication of guidelines by the Illinois State Police.

 

The Illinois Firearms Owners Identification Card [“FOID”] Act , 430 ILCS 65 provides that an individual will have their FOID card automatically revoked if

 

“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.” 430 ILCS 65/8(e)

The certification required under 430 ILCS 65/8(u) is defined as:

 

“A person who has had his or her Firearm Owner's Identification Card revoked or denied under subsection (e) of this Section or item (iv) of Section 4 of this Act because he or she was a patient in a mental health facility as provided in item (2) of subsection (e) of this Section, shall not be permitted to obtain a Firearm Owner's Identification Card, after the 5 year period has lapsed, unless he or she has received a mental health evaluation by a physician, clinical psychologist, or qualified examiner as those terms are defined in the Mental Health and Developmental Disabilities Code, and has received a certification that he or she is not a clear and present danger to himself, herself, or others. The physician, clinical psychologist, or qualified examiner making the certification and his or her employer shall not be held criminally, civilly, or professionally liable for making or not making the certification required under this subsection, except for willful or wanton misconduct. This subsection does not apply to a person whose firearm possession rights have been restored through administrative or judicial action under Section 10 or 11 of this Act”

ISP had the mental health reporting rules changed after the scathing report which was done by the Illinois Auditor General in April 2012...and rightfully so. If a person is potentially dangerous we all do have an obligation to see that something is done. The problem that exists right now is that the mechanism that has been created is essentially a one way trap....like a roach motel..once you get in...there is seemingly no way out.

 

My own situation was such that once brought into the emergency room, they quickly figured out that I was critically ill with bacterial pneumonia, renal failure, sepsis, etc. The put me on a ventilator, sedated me and moved me into intensive care where they were not sure if I was going to survive. Thankfully, eventually, the medical situation began to improve. However, during the time in ICU the combination of my illness and the drugs that were being used to treat the illness caused me to have some delirium. As a consequence, I voluntarily granted permission for a psych admit. I was never judged to be dangerous, no court involvement, no concerns of that type EVER brought up. The psych admit was done to permit my doctors to perform observation which they believed was necessary prior to my being released from the hospital. I spent roughly one day in the psych ward under observation....and was released the next day to go home unsupervised...period..end of story......or so I thought.

 

The hospital was required to make a notification to the Dept. of Health, which, in turn, notified ISP and BOOM two days later my FOID was revoked. The revocation letter gave me two days to surrender my FOID to the local police department and in my case transfer an entire safe full of high end firearms [which took over two pages of transfer forms ot complete]. I immediately complied with that request. Two days after that ATF showed up at my office and requested that I voluntarily "surrender" my FFLs until the matter was resolved....notice I did so voluntarily...not revoked. A day later, an Evanston Police Detective showed up together with roughly fifteen Cook County Sheriff's Deputies in full SWAT gear demanding to search the premises. I permitted the search, which provided them with a pellet rifle, a black powder pistol and four rounds of ammo. They left after an hour.

 

I immediately reached out to my NRA TC and a number of friends as well as Todd V. I obtained all of the required documentation for the FOID Revocation Appeal which included three notarized letters from people that knew me well, a copy of the 1,500 page hospital transcript and my narrative of the situation which ran for eight pages. I retained a nationally known psychiatrist to perform a forensic psych exam on me, as required by ISP's guidelines. I wound meeting with the psych a half dozen times, he also spoke to my family members. After three months and close to $12,000 he produced a 38 page report which concluded that all of the symptoms I had displayed were attributable to my medical situation and had no cause for a psychiatric concern. He concluded that I am "not a danger to myself or others" and "fit to own, acquire and use firearms" The language quoted is exactly that which is contained in the report. ISP received the original of that report and appears to have done nothing with it. When I inquired with respect to request an estimate of how long it take to expect a conclusion, I was told that I would "receive a final decision from the Director and until that time the matter remains under investigation". Nothing further.

 

I am not going to elucidate all of the back and forth with counsel to this point due to the on-going nature of the matter. I will share a few salient points so everyone is aware of what has transpired.

 

· There is no one that has been willing to provide any guidance or explanation of how the appeal process under 430 ILCS 65/9 is supposed to work. At this juncture, I have formally filed a Freedom of Information Act Request seeking any relevant documentation on the topic.

· The Illinois Auditor General's office has been requested to review their files to ascertain is anything related to the FOID Revocation appeal process was reviewed in connection with their April 2012 study.

 

· I am not sure how many of you are familiar with the "substantially similar" language issue that is floating around with regard to CCL permit reciprocity between Illinois. At this point in time, Hawaii is the only other state in the US that has a revocation of the right to own firearms associated with a voluntary psych admit. My understanding is that the lack of this type of provision in the laws of other states is responsible for holding up any recognition of other state's CCL permits by ISP.

 

At this point in time, there are several distinct efforts underway seeking to resolve the FOID Revocation Appeal process on my behalf. I can't tell anyone if ISP is going to rescind the revocation, we will obtain any additional information from the FOIA request, or if we are going to have to go to court....whether that turns out to be state or Federal court [note that there is an entirely separate discussion with regard to which court and why as the basis to proceed with this.

 

My sense at this point is that the scenario I have described in substantial detail should scare the heck out of each and every person reading it. EVERY SINGLE ONE OF YOU ISN'T IMMUNE FROM BECOMING ILL, AND FINDING YOURSELF IN EXACTLY THE SAME SITUATION. As of this point in time, it feels like having contracted the 2A version of a terminal illness...there is no known way out, and literally its death. Once your FOID is revoked, your CCL license is revoked, and your CCL Instructor Credentials are revoked and don't even think about being able to do ANYTHING about the latter two items unless and until the FOID is resolved. I truly am not intending to infuriate or scare everyone with this, however, its a pretty terrible situation that everyone ought be aware of. The underlying factual documents such as medical charts, psych reports, etc are not going to be put out in a public space for obvious reasons, however, NRA counsel and those that need to know have seen all of the original documentation. [This is NOT like some of the other delayed or denied application comments where there are questions with regard to the underlying facts.] For those of you that know me, I have always been very active and aggressive in protecting 2A related rights......I intend to continue to be..I would, however, prefer not to be the "experimental rabbit".

 

 

 

 

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We're all with you, Elmer. If I can help you in any way possible, let me know as this type of garbage happens all too often and this gross miscarriage of justice needs to end. There is a Due Process issue here and, based on what I've read, it's not exactly constitutional but will be tricky to challenge.

 

Your predicament, the 8(e) revocation, as well as these CCL denials citing 8(f) are nuts and invite 1983 claims seeking declaratory and injunctive relief not to mention (since your FFL was voluntarily surrendered based on BATFE guidance and not revoked), damages of the economic variety. I wouldn't even be able to draft an appeal brief if I were denied and handling mine pro se because it's like being told you're under arrest, but not the statute which you violated, held in jail so to speak, and being expected to mount a defense in a limited period of time. No right to confront one's accuser, police reports are inadmissible unless the LEO who wrote the report is dragged in via subpoena, and although a reasonable person would consider the CCLRB to be jury of sorts, it's not a jury of one's peers unless those peers are lawyers, retired FBI, or both, a retired federal judge who is now back in private practice, and a head shrinker ("expert") from Wilmette (or Winnetka, whoa big difference), there is no Sixth Amendment right to a trial by jury of any other right under the Sixth. The entire "reasonable suspicion" for objections, the preponderance of the evidence standard used to deny one's individual RKBA, this has gotta go. Insofar as your predicament, I'm gonna PM you, I've got a quick question.

 

South Carolina has been added to the list of substantially similar states (during your hiatus). Surprised California (72 hr emergency hold = bye bye guns for 5 yrs) or New York (xanax + anti-gun shrink = screwed) weren't the first states to be added to that list.

 

Sent from my SCH-I545 using Tapatalk 2

 

 

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Wow! If you read the definition of "patient" it also includes anybody who has even went as an "outpatient." The state of Illinois is the only state that will revoke your FOID even as an outpatient which is sad because no other states have that clause. Rumor has it even though statute says "outpatient" as well, ISP will only revoke your FOID if you go in as an "inpatient." I guess the statute is purposely left vague so they can have the flexibility to revoke your card.

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The outpatient language contains the caveat, poses a clear and present danger to himself, herself, or others. Now, did you go talk to someone because your mom died? Not good enough unless you communicated threats to the counselor. That said, anyone is capable of fabricating something. It's your word (the nut) vs. The word of a mental health expert. That is why the statutory language leaves me scratching my head. You have the police come to your house because you're angry about (insert damn good reason here) and blurt something out. Well, FOID should be gone. Make some joke about wanting to jump off a bridge or choke your boss after a bad day at work, wife calls police, police drag you in to ER to be evaluated and the evaluator says you're fine, apparently they can still deny your CCL application. Shrink doesn't like that you own guns, well, I would HOPE that he or she wouldn't falsify medical records and report a patient because if the patient finds out, that's a whole big mess that will end up with the shrink's medical license disappearing and a big fat permanent record of the disciplinary action. Who knows what they're using really but it's about to get VERY interesting soon.

 

Sent from my SCH-I545 using Tapatalk 2

 

 

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Having spent a substantial amount of time looking at the provisions, I am not all that worried about an outpatient relationship. The psych has to take the affirmative step of attesting that you are a danger to get your FOID revoked. The voluntary inpatient admit is quite a bit different. Consider....the scenario described above..police drag you to the ER....they don't see anything wrong with you but, they decide to admit you to the psych ward for overnight observation. BOOM!! Your the fileing of a notice is automatic and so is the FOID Revocation...that's that trap that has me most worried.

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