MPR 3.5 - Notice of Restrictions

• Proposed New Rule MPR 3.5 - Notice of Restrictions (in Word Format)
• No comments are available at this time.

Purpose:

RCW 9.41.047 was enacted in 1994 as part of an omnibus violence reduction program. See Laws of 1994, 1st Sp. Sess. §§ 101 and 404. This statute provides, in pertinent part, that

At the time a person is . . . committed by court order under RCW 71.05.320, 71.34.090 [recodified in 2005 as RCW 71.34.750], or chapter 10.77 RCW for mental health treatment, the . . .or committing court shall notify the person, orally and in writing, that the person must immediately surrender any concealed pistol license and that the person may not possess a firearm unless his or her right to do so is restored by a court of record. . . . .

The convicting or committing court also shall forward a copy of the person's driver's license or identicard, or comparable information, to the department of licensing, along with the date of conviction or commitment.

RCW 9.41.047(1).
A recent informal review of the adequacy of the state's compliance with the above statute indicates that, while some courts are providing the statutorily required notice, many are not. This informal review also established that sufficient information is often not being submitted to the Department of Licensing to allow the Department to match the notice to a specific person's file. In addition, proposed federal legislation would reduce federal provided to states that do not fully report the names of individuals who are ineligible to possess a firearm under 18 U.S.C. § 922(g)(4) due to the individual having "been adjudicated as a mental defective or has been committed to any mental institution." See H.R. 2640 and S. 2084 (NICS Improvement Amendment Act of 2007).

Providing committed individuals with information regarding the impact of the commitment upon their ability to possess a firearm is only fair. While the failure to provide such notice may present a defense to a state firearms charge, the federal law recognizes no such defense. See United States v. Milheron, 231 F. Supp. 2d 376, 378-81 (D. Maine 2002) (ignorance of the law is not a defense to prosecution for possession a firearm in violation of 18 U.S.C. § 922(g)(4)). Cf. United States v. Napier, 233 F.3d 394 (6th Cir. 2000) (failure to notify the person restrained by a DV order that federal law bars their possession of a firearm is not a defense to federal prosecution for unlawfully possessing a firearm); United States v. Kafka, 222 F.3d 1129, 1131-32 (9th Cir. 2000) (same).

Adding a new court rule to the Mental Proceedings Rules that outlines the duties mandated by a statute that is buried in Title 9 RCW, will increase the likelihood that individuals who are committed for mental health treatment will receive information that can assist them in avoiding criminal liability and that the government will receive information that can assist it during gun purchase background checks.