DPS categorized me as unfit to carry when I'm not

[ford1776]

Hello,

I am looking for an attorney to take the next phase of the case I have vs. the TX Dept of Public Safety.

Short summary:

in 1997 I sought mental health treatment at Parkland hospital in Dallas and was referred to outpatient treatment.  I was NEVER committed.
In 2011 this incident was reported on my NICS background check as if I was institutionalized, preventing me from renewing my concealed handgun license in 2014.

The way the the law reads, one is unfit to carry/own a firearm if committed to INPATIENT treatment.  I was outpatient.  So the attorney I have already hired, is about to either file a motion or a petition to clear the record to show I never had a firearm disability. Then I should finally get my renewal license after 6 months of fighting this. (and it had expired)

I am seeking a civil rights attorney for the next stage of this case, which is to sue the TX DPS for my expenses: Attorney's fees, I traveled 2,000 miles back to Texas for a new psych evaluation, paid for FBI fingerprinting and DPS checks and more.  All of this was advised by my attorney when we thought we were battling an actual commitment order. But they were unnecessary because the mental health order indicates I was outpatient only, and never should have been deemed unfit in the first place. And why should I have to fight this 18 years after the incident? There already exists a 5 year ban on those who had inpatient treatment. I had outpatient treatment. I should have been cleared by the time that had elapsed. I only found out about it because I was denied a handgun license in the state I recently moved to. If not for that, I'd never have known.

What I am seeking:  my expenses paid and the law changed to notify anyone who is deemed unfit to own or carry a firearm to be notified in writing.  I have been turned down for employment and have been under scrutiny because I hold professional licenses. The opportunity cost is hard to prove, but I have tangible monetary damages.  It seems a low-level clerk put a check in the wrong box and has up-heaved my life.

I am looking for a Texas attorney who would be willing to be paid out of the settlement, as I have already sunk thousands into this matter.  It seems there is a clear violation of my Second Amendment rights, so it looks like a solid case. So if you have any referrals of attorneys that can help me, I'd appreciate it.

[AlaskanInTexas]

Sometimes in life it is best to just move on when you are wronged. I wonder if this might be one of those situations?

[ford1776]

Because if it can happen to me it can happen to others. And those who don't have thousands to throw at it, will be denied their right to carry and own a firearm. It seems like there was no oversight into deeming someone unfit, when I clearly don't meet the law definition of unfit. The State should assume some responsibility and correct the methods of reporting "unfit to own a firearm" to NICS. Any one's life can be ruined by this. Especially if you have professional licenses that require you to be crime free and of sound mind, like mine do. The whole thing is unacceptable, and if I turn my head and walk away, nothing changes.

[Keith B]

If it was posted to your Federal NICS status, then that is where I would look at focusing. Texas DPS is just going on information they received and if it showed you were ineligible, then they followed the letter of the law by denying the renewal.

I would suggest you find out who/how it got reported to the Federal NICS and see if they provided wrong information. If the facility you went to reported it incorrectly, then they may be liable for any civil rights violation.

[cb1000rider]

So you got approved initially and then the renewal was declined?

Certain branches of the government have discretion in certain cases. I don't know if there is a discretionary authority in the CHL process or not - obviously you know more about your specifics, but in other licensing fields there is someone who can approve or deny (both are allowable by law) - again, I don't know if that's the case with CHL or not. In those cases, most mental illness diagnoses are considered life long - they don't disappear. To get associated licenses, the required testing is expensive and it really puts doctors on the line - IE the psyc evaluation you just had. And the government typically won't accept a psyc evaluation unless the DR has very specific accreditation.. The resulting exam costs thousands.

It sounds like you're getting your license. And it was held up due to a mis-file. I'd wonder why it was ever issued in the first place?

You make it sound like this misfile was recent and it's costing you employment... If so, that's REALLY bad...

[WildBill]

If it was posted to your Federal NICS status, then that is where I would look at focusing. Texas DPS is just going on information they received and if it showed you were ineligible, then they followed the letter of the law by denying the renewal.

I would suggest you find out who/how it got reported to the Federal NICS and see if they provided wrong information. If the facility you went to reported it incorrectly, then they may be liable for any civil rights violation.

I don't know how this information gets entered into the NICS database, but have you tried contacting the medical facility and have them retract, amend/change whatever information they sent to the NICS?

Welcome to the forum Ford1776!

[ford1776]

My current attorney is handling the petition to retract the "firearm disability". It will be addressed with the hospital who miscategorized it in the first place.

The reason I got my CHL initially in 2010 was that it was not on my record. it was reported in 2011 due to the laws regarding mental health that changed due to the Virginia Tech shooting in 2007. It required all past mental health issues to be reported. Since mine was from 1997, pre electronic record keeping, it took them a while to catch up. So the State of Texas should have immediately revoked my CHL in 2011 when they posted it, if I was such a danger. But they didn't, and I didn't find out about it until my renewal in 2014.

This is why I was the laws to change to require a letter be sent to all who are deemed unfit. It was on my record for almost 3 years and I didn't know about it. During that time I had difficulty finding a job. We will never know if it was related to this false indication of mental illness or not. People should be alerted that they are being flagged as a mental defect.

[cb1000rider]

Wow.. I'd say you have action against the hospital, but that the government "mostly" did their job based on the information that they had.
Sorry that such happened to you. I agree, notification of "unfit" status would be nice - or some ability to query on status... .

[rbwhatever1]

I'm glad you're fighting this. What happens when the wrong data dump gets "accidentally entered" on millions of Texans? Would we all be instant criminals for ignoring the "unfit to own firearms" status? Would we have to get a physician to clear us? Will the Sherriff take our guns? Slippery slope indeed.

Good luck and I hope the State of Texas supports you fully.

[Tic Tac]

Wow.. I'd say you have action against the hospital, but that the government "mostly" did their job based on the information that they had.
Sorry that such happened to you. I agree, notification of "unfit" status would be nice - or some ability to query on status... .

I agree. If the hospital falsified a government record, maybe you can get someone charged with that crime or seek civil remedies for the crime, but I don't think we should blame DPS for acting in good faith on the available records.

http://www.statutes.legis.state.tx.us/D ... /PE.37.htm" onclick="window.open(this.href);return false;

[The Annoyed Man]

Wow.. I'd say you have action against the hospital, but that the government "mostly" did their job based on the information that they had.
Sorry that such happened to you. I agree, notification of "unfit" status would be nice - or some ability to query on status... .

I agree. If the hospital falsified a government record, maybe you can get someone charged with that crime or seek civil remedies for the crime, but I don't think we should blame DPS for acting in good faith on the available records.

http://www.statutes.legis.state.tx.us/D ... /PE.37.htm" onclick="window.open(this.href);return false;

This ^.

You have definitely been wronged, but two of the agencies concerned were merely acting on data which A) is their fiduciary responsibility to act on, and B) for which they have no legal obligation to investigate veracity. They act in good faith that the information provided to them by the reporting agency is correct in its particulars, and they have no obligation.....and more to the point, no authority under the law to do anything except to reject the non-qualifying application and notify the applicant of the rejection. They have no obligation or authority under the law to determine if the reason for the rejection is legitimate. The law seems to place the onus on the applicant's shoulders to prove that the application was wrongly rejected, not on the rejecting agency's shoulders to defend their decision—which is based on information received in good faith from the reporting agency.

So it seems to me that your beef, which IS legitimate, is 100% with the hospital that not only misreported the facts, but may have committed a HIPPA violation in doing so.

[ford1776]

Good point. So if the DPS acted upon info provided, then the hospital is the one who miscategorized me. Hopefully there is some responsibility on their part to put the check in the appropriate box, based on the FACTS of my visit to the hospital, and notify me they were deeming me unfit. They did neither. The only obligation DPS had was to revoke my handgun license in 2011 once this was reported, and they didn't do it. So technically, they let a "nutjob" walk around for another 3 years with a CHL. I understand they probably don't do BG checks on people in mid-license, but if I were really a threat and something happened as a result, they'd be liable. So I agree the hospital had more liability, but both are responsible, albeit not equally.

Someone earlier made a great point: if hospitals and clinics are not careful, and wrongly deem people unfit, we would usually find out by unknowingly being a criminal and getting arrested. And then guns can be confiscated, and we'd have to hire psychologists to evaluate us and clear our names, etc. We shouldn't have to go through that. They should do their job correctly the first time.

And I have a BIG problem with the lack of notification. If something unfavorable goes on your credit, you are notified and can dispute it under the Fair Credit Reporting Act. This is far more serious and impactful and yet no notification? No way to dispute without hiring an attorney? It's just plain wrong.

[Keith B]

Good point. So if the DPS acted upon info provided, then the hospital is the one who miscategorized me. Hopefully there is some responsibility on their part to put the check in the appropriate box, based on the FACTS of my visit to the hospital, and notify me they were deeming me unfit. They did neither. The only obligation DPS had was to revoke my handgun license in 2011 once this was reported, and they didn't do it. So technically, they let a "nutjob" walk around for another 3 years with a CHL. I understand they probably don't do BG checks on people in mid-license, but if I were really a threat and something happened as a result, they'd be liable. So I agree the hospital had more liability, but both are responsible, albeit not equally.

Someone earlier made a great point: if hospitals and clinics are not careful, and wrongly deem people unfit, we would usually find out by unknowingly being a criminal and getting arrested. And then guns can be confiscated, and we'd have to hire psychologists to evaluate us and clear our names, etc. We shouldn't have to go through that. They should do their job correctly the first time.

And I have a BIG problem with the lack of notification. If something unfavorable goes on your credit, you are notified and can dispute it under the Fair Credit Reporting Act. This is far more serious and impactful and yet no notification? No way to dispute without hiring an attorney? It's just plain wrong.

It is very possible that because the reporting was just done on NICS, the only time it was seen by DPS was when another NICS check was ran to do the background for your renewal. Had it been a visit between 20010 & 2015, then DPS would have likely been notified of a new event and reviewed your status at that point. Because it was actually prior to 2010 for the original event, I will bet it just went in the NICS record and DPS never actually got notified, but just found it during the new background check.

So, as stated, the beef should really be with the hospital on how they reported the issue and how it was entered into the federal NICS.

Also, I am not clear on what your status really is on this from your posts, but if NICS has it listed wrong, then you should be prevented from purchasing a firearm if the FFL does an NICS check. During the time you had your CHL, the FFL only had to write the CHL number on the form 4473 and file it away and not do a NICS inquiry. So, make sure that your NICS record is cleaned or you will not be able to buy a firearm AND DPS will not issue you a renewal.

[C-dub]

And I think it will be tough to prove malice or intent on the part of the hospital. It will probably be determined to have just been a mistake and hopefully corrected ASAP.

I may have missed someone else pointing this out, but the commitment also has to be involuntary, doesn't it? As you've also pointed out, yours also wasn't involuntary.

[Jumping Frog]

And I think it will be tough to prove malice or intent on the part of the hospital. It will probably be determined to have just been a mistake and hopefully corrected ASAP.

I may have missed someone else pointing this out, but the commitment also has to be involuntary, doesn't it? As you've also pointed out, yours also wasn't involuntary.

One does not need to prove malice or intent when pursuing damages for negligent acts. Submitting incorrect records is (at minimum) a negligent act that created harm.