RUSS REPORT - The United States Justice Foundation (USJF) has filed the first lawsuit of what promises to be a string of lawsuits in the US District Court for the Southern District of California against the US Department of Veterans Affairs (DVA) and the Veterans Benefits Administration (VBA).
USJF sought records via the Freedom of Information Act (FOIA) regarding “Veterans Benefits Administration (VBA) rules, regulations, and criteria for making determinations of incompetency due to a physical or mental condition of a benefit recipient, and, all VBA rules, regulations, and criteria for appointing of fiduciaries to manage VA payment.”
The FOIA request also sought “copies of all rules, regulations and criteria used by the VBA to determine that a veteran found incompetent for any reason can be prohibited from purchasing or possessing a firearm.” USJF requested records with a date range from January 1, 2008 through February 21, 2013.
The VA website trumpets compliance with FOIA, “It is VA's policy to release information to the fullest extent under the law,” yet a lawsuit had to be filed to obtain an order of compliance because of DVA’s failure to respond within the 20-day response period prescribed by law.
USJF is acting on behalf of veterans, across the country, who have received “form” letters from the VBA quashing their Constitutional rights without proper adjudication.
Michael Connelly, USJF Executive Director, said, “The USJF has received numerous complaints from military veterans around the country who are being declared incompetent to handle their own financial affairs and then told that they can no longer purchase or own firearms or ammunition. This determination is being made without due process protections for the veterans and the basis for the incompetency ruling is often arbitrary and without a factual or legal basis.”
Current policies of the VA have caused more than 129,000 veterans to, arbitrarily, be deprived of their Second Amendment Rights to own firearms without due process simply because they were declared financially “incompetent.”
These arbitrary policies, in no way, consider whether a veteran represents a danger to themselves or to others.
It is, unequivocally, unsound and irrational thinking that sends our young men and women off to war and expects them to come home “whole.” Most veterans experience minor depression, minor PTSD, and even minor short-term memory loss when they return home but can still function- competently.
No court would find them incompetent and strip them of their second amendment rights for such minor diagnoses unless they were proven to be a detriment to society. In some these cases, the VA does not even offer reasons or evidence for such a Determination.
VA determinations are not made by mental health professionals or adjudicated in a Court of law, but rather by a benefit administrator- a policy that is quite different than the rest of the population whose cases must be adjudicated in a Court of law. Veterans are not given a hearing before these determinations are made by the VA but can request a “hearing” after the fact or can file an appeal to dispute the VA’s findings.
For any person, other than a veteran receiving VA benefits, a hearing is conducted FIRST to make such a determination. Interested parties are allowed to speak BEFORE any determination is made.
The 14th Amendment of the US Constitution is very clear. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Additionally, the VA, regardless of whether or not determinations were made because of a physical disability or a mental defect, submits the names of veterans, deemed by the VA to be incompetent to the National Instant Criminal Background Check System (NICS). NICS is voluntary in all but 13 states. There is no criterion to require background checks for those with physical disabilities, especially those without any criminal records.
There are no implemented policies by the VA for veterans who own guns PRIOR to a VA determination of incompetency, but it is clear that with such a determination, a veteran cannot purchase, possess, receive or transport firearms or ammunition without a fine, imprisonment or both.
One can only surmise the outcome would be seizure of that property by some law enforcement agency
The Veterans Administration (VA) notes that current procedures DO allow a veteran to have firearms rights restored by either getting the incompetency determination reversed or by petitioning the VA to have their firearms rights restored if that individual “poses no threat to public safety.” This is akin to “Guilty before proven innocent.”
To petition the VA in either instance, a veteran must seek legal help and the process is time-consuming and cost prohibitive for most veterans. In the majority of cases, petitions for relief are denied.
Connelly said the USJF will not charge veterans or their families any fees or expenses for its representation.
“As a veteran myself I know that America’s heroes, many of them recovering from wounds, do not need the additional pressure of having to pay to defend their rights,” he said.
Veterans deserve the same equal protections that they fought for all Americans to have.
It is a sad day when those freedoms and rights are stripped from them when they came home from war.
"As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them." -John Fitzgerald Kennedy
The USJF is a nonprofit, public interest, legal action organization, dedicated to instruct, inform, litigate, and educate the public on significant legal issues confronting the United States. Visit www. usjf.net
(Katharine Russ is an investigative reporter. She is a regular contributor to CityWatch and to the North Valley Reporter. Katharine Russ can be reached at: [email protected] ) –cw
Vol 11 Issue 34
Pub: Apr 26, 2013