U.S.A. –-(Ammoland.com)- This article is the second of two articles regarding the Social Security Administration’s new regulations designed to disqualify many beneficiaries from possessing or purchasing firearms. It explains the overall process for pursuing relief from the Social Security Administrations reporting of a mental disability to the NICS based on those regulations.
“When [SSA] adjudication that an individual meets the criteria [for reporting to NICS] becomes final, he or she may apply for relief from the Federal firearms prohibitions imposed by Federal law as a result of our adjudication.” The applicant “may request relief at any time after [SSA’s] adjudication that results in that person becoming prohibited . . . becomes final.” The SSA is required “to process each application for relief not later than 365 days after the date [SSA] receive[s] it” and considers the application received to be the date on which all of the required evidence was submitted.
“An applicant who requests relief . . . must prove that he or she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions imposed . . . will not be contrary to the public interest.”
“An application for relief filed . . . must be in writing and include the information required [below]. It may also include any other supporting data that [SSA] or the applicant deem appropriate. When an individual requests relief . . ., [SSA] will also obtain a criminal history report on the individual before deciding whether to grant the request for relief.”
When deciding whether or not to grant an application for relief, the SSA will consider the following factors:
- The circumstances regarding the firearms prohibitions imposed;
- The applicant’s record, which must include the applicant’s mental health records and a criminal history report;
- The applicant’s reputation, developed through witness statements or other evidence.
The person applying for relief is required to provide both of the following categories of statements to the SSA “in support of a request for relief:”
- Primary Mental Health Care Provider: A current statement from the applicant’s primary mental health provider assessing the applicant’s current mental health status and mental health status for the 5 years preceding the date of the request for relief.To qualify as a “current statement from the applicant’s primary mental health provider,” the statement must be based on a “complete mental health assessment that was conducted during the 90-day period immediately preceding the date [SSA] received the applicant’s request for relief.” The statement is also required to specifically address each of the following:
- Whether the applicant has ever been a danger to himself or herself or others; and
- Whether the applicant would pose a danger to himself or herself or others if SSA granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.
- Formal, Required Statements: Written statements and any other evidence regarding the applicant’s reputation. “Written statements regarding the applicant’s character” must specifically provide all of the following information:
- Identify the person supplying the information;
- Provide the person’s current address and telephone number;
- Describe the person’s relationship with and frequency of contact with the applicant;
- Indicate whether the applicant has a reputation for violence in the community; and
- Indicate whether the applicant would pose a danger to himself or herself or others if we granted the applicant's request for relief and the applicant purchased and possessed a firearm or ammunition.
In addition to the two required sets of written statements (primary mental health provider and statements regarding applicant’s reputation/character), the regulations provide an opportunity to include additional written statements with less formal requirements “from anyone who knows the applicant . . . and can attest to the [applicant’s] good reputation.” These optional statements may be written by “anyone who knows the applicant, including but not limited to clergy, law enforcement officials, employers, friends, and family members.” There are a few limitations, however. The person providing the statement must:
- have known the applicant for a sufficient period;
- have had recent and frequent contact with the applicant; and
- can attest to the beneficiary's good reputation.
These less formal statements “must describe his or her relationship with the applicant and provide information concerning the length of time he or she has known the applicant and the frequency of his or her contact with the applicant.”
Under the same paragraph providing for these voluntary and less formal statements, the regulations state, “The applicant must submit at least one statement from an individual who is not related to the applicant by blood or marriage.” It is unclear what the regulations are attempting to accomplish, but could mean any of the following:
- Even though the applicant “may” obtain these less formal statements, these informal statements are actually required and must include at least one from a non-relative;
- At least one of these less formal statements is required and it must be from a non-relative;
- None of these less formal statements are required but, if they are, at least one of them must be from a non-relative; OR
- None of the less formal statements are required and the required statement from a non-relative is actually meant to be included under the second requirement for the required, more formal, written statements.
There is a subtle difference between paragraphs (1) and (2) above, and paragraph (2) seems to be the most reasonable interpretation of the four possibilities. To be safe however, the author suggest assuming the most burdensome interpretation, the last option, and submit at least one non-family declaration that meets the formal requirements of the required written statements.
After the applicant submits the required evidence and “any other evidence he or she wants [SSA] to consider, [SSA] will review the evidence, which will include any evidence from [SSA’s] records that [SSA] determines is appropriate. A decision maker who was not involved in making the finding that the applicant’s benefit payments be made through a representative payee will review the evidence and act on the request for relief.”
The SSA “may grant an applicant's request for relief if the applicant establishes, to our satisfaction, that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety, and that the granting of the relief would not be contrary to the public interest.” However, SSA “will not grant an applicant’s request for relief if the applicant is prohibited from possessing firearms by the law of the State in which the applicant resides.”
The SSA “will notify the applicant in writing of [their] action regarding the request for relief.” If [SSA] den[ies] an applicant’s request for relief, [SSA] will send the applicant a written notice that explains the reasons for [their] action. [SSA] will also inform the applicant that if he or she is dissatisfied with [their] action, he or she has 60 days from the date he or she receives the notice of our action to file a petition seeking judicial review in Federal district court.”
If, however, SSA grants an applicant’s request, they “will send the applicant a written notice that explains the reasons for [their] action” and “inform the applicant that [they] will notify the Attorney General, or his or her delegate, that the individual’s record should be removed from the NICS database.” SSA will “also notify the applicant that he or she is no longer prohibited under 18 U.S.C. 922(g)(4) from purchasing, possessing, receiving, shipping, or transporting firearms or ammunition based on the prohibition that we granted the applicant relief from.” Finally, SSA “will notify the Attorney General, or his or her delegate, that the applicant’s record should be removed from the NICS database.”
“If [SSA] fail[s] to resolve an application for relief within [the mandated 365 days] for any reason, including a lack of appropriated funds, [SSA] will be deemed to have denied the relief request without cause.” The comments preceding these regulations refer several times to 18 U.S.C. 925(c), which is the statutes authorizing a process to request relief from the Attorney General for relief from firearms prohibitions. However, consistent with congressional appropriation acts since 1992, funding provisions for the ATF under the Consolidated Appropriations Act for 2016 specifically state, “That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under section 925(c) of title 18, United States Code.” If Congress does not provide funding for the SSA to review these applications, they will be deemed to have been denied one year after they were submitted, thus allowing for federal court review. This provision is unlike applications to the ATF under Section 925(c) which are returned and, because they are not deemed to have been denied, precluded from judicial review.
About Gary B. Wells:
Gary B. Wells is licensed to practice law in the states of Texas and California. He is the author of “Firearm Laws for Business & Their Customers,” which can be purchased from his website, and provides a wide range of legal services for firearm businesses and owners.