Firearm Rights Restoration After Involuntary Commitment In Western Washington State
The attorneys of Platt & Buescher can help those who have been involuntarily committed restore their right to possess a firearm under Washington state law.
A person who has been committed to a mental institution or who has been determined to be a mental defective is prohibited from possessing a firearm under federal law. 18 USC 922(g)(4). A person who has been involuntarily committed for mental health is prohibited from possessing a firearm under Washington state law. RCW 9.41.040(2)(a)(iii).Washington State Law:
Washington State law provides a procedure for the restoration of firearm rights for individuals who have been involuntarily committed. A court must restore the person’s right to possess a firearm if the person proves by a preponderance of evidence (i.e. it is more likely than not) that the person:
- is not required to do inpatient treatment as ordered by a court;
- has successfully managed their mental condition;
- is no longer a substantial danger; and
- does not have symptoms that are reasonably likely to recur. RCW 9.41.047(c).
The person must also make sure the requirements of RCW 9.41.040 are otherwise fulfilled (i.e. no other prohibiting criteria apply aside from the underlying involuntary commitment).
Restoration of the right to possess firearms after involuntary commitment on the state level does not restore the right to possess firearms on the federal level.Federal Law and Politics:
In general, 18 USC 925(c) provides that a person forbidden from possessing firearms may apply to the Attorney General for relief from the disqualification from possessing firearms imposed by Federal law. The Attorney general may relieve the person of the disqualification if he or she determines that the applicant’s record and reputation and the circumstances concerning the disqualification are such the applicant will not likely act in a dangerous manner. If the Attorney General denies the application then the person may petition a United States District Court for judicial review of the denial. 18 USC 925(c).
Previously, the authority to process applications and determine whether relief should be granted under 18 USC 925(c) was delegated to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). But, since October 1992, the ATF’s annual appropriation has prohibited it from expending funds to act upon applications for relief from federal firearms disabilities submitted by individual persons (as opposed to corporations). Therefore the ATF cannot act upon applications filed pursuant to 18 USC 925(c). Therefore, it appears this statutory law has been subject to a de facto repeal due to lack of funding.
It also appears courts disagree whether the ATF’s inability to act upon applications provides sufficient administrative exhaustion to trigger judicial review under 18 USC 925(c). See, e.g., Rice v. United States Department of Alcohol, Tobacco, and Firearms, 68 F.3d 702 (3rd Cir. 2000) (Congress did not intend to divest District Court of subject matter jurisdiction by not funding ATF and the ATF’s inability to process 18 USC 925(c) applications constitutes an undue delay that excuses applicants from exhausting administrative remedies prior to judicial review); compare Burtch v. United States Department of the Treasury, 120 F.3d 1087 (9th Cir. 1997) (ATF’s mere failure to process individual applications does not trigger judicial review because no adverse determination is made on the merits). As a general rule exhaustion of administrative remedies is a condition precedent for judicial review. Unfortunately courts appear to not consider the ATF’s inability to act upon 18 USC 925(c) applications as sufficient exhaustion of administrative remedies to trigger judicial review. Some courts also seem to adopt the view that Congress’ refusal to appropriate money is an intentional act designed to effectively repeal 18 USC 925(c). Case law provides further guidance on the subject.
Contact Platt & Buescher Attorneys at Law at (206) 569-8630 or (360) 678-6777 to talk with a lawyer about restoring the right to possess firearms on the state level. Platt & Buescher Attorneys at Law serve Oak Harbor, Seattle, Bellingham, Mt. Vernon, Burlington, King, Island, Skagit, and Whatcom counties.