Why the Arizona Court of Appeals doesn’t think you have a right to a free attorney to restore gun rights?

by | Nov 29, 2014 | Articles

In Pinal County Board of Supervisors v. Georgini, Division 2 of the Arizona Court of Appeals held that a person doesn't have a right to court appointed counsel to restore gun rights if taken away due to a mental illness. The facts of the case involved a woman found mentally ill and had her gun rights taken away pursuant to A.R.S. § 36-540. After treatment and successful discharge back to competency, her public defender filed a motion to restore her gun rights pursuant to A.R.S. § 13-925 alleging that she was no longer mentally ill after successful treatment. Instead of responding to the heart of the issue (i.e. whether she was restored to competence and had now a right to bear arms again), the government challenged her second amendment right by objecting to her having a public defender. This tactic worked and the court held that she did not have a right to a free attorney at the public's expense.

The court's reasoning for the ruling:

  1. There was no law or statute in Arizona that directly addressed the issue. And while the Pinal County Board of Supervisors could approve a public defender for that very reason, it didn't do it so the court had to rely on the due process clause of the Constitution to determine if one should be mandated. This means that if the court found that refusing to pay for her public defender deprived her of "liberty" or "property," then due process could mandate that she had a right to an attorney even if she couldn't afford one.
  2. In analyzing due process rights, there is a difference between restoring rights and taking them away. Although the United States Supreme Court held that the right to bear arms is "among those fundamental rights necessary to our system of ordered liberty," it was not enough to persuade the court that a person who could not afford their own attorney is entitled to a public defender for assistance. Because the government was not trying to take something away from her, the court found less of a due process interest to trigger court appointed counsel.
  3. Because the nature of mental health proceedings are more inquisitive than adversarial, a person is not entitled to a public defender.

Problems with that ruling:

One of my biggest criticisms with the decision is one of the closing comments:

The state is not necessarily an opponent in the proceeding. It also has an interest in protecting the Second Amendment rights of citizens who are eligible to possess firearms, which co-exists with a duty to prevent those ineligible to possess weapons, by virtue of dangerousness resulting from mental illness, from doing so. Public safety includes citizens whose right to possess firearms has been suspended due to mental illness. In other words, appropriate opposition by the state to restoration of the right to possess a firearm will be in the best interest of a person whose mental illness would render its possession dangerous to her and others.

The state is not necessarily an opponent? Are you kidding? I've been in the trenches now for quite some time and they are absolutely adversarial proceedings. Although I don't know the details of this woman's competency to possess a firearm, it would not surprise me if the government was worried about losing this hearing. As discussed, the government didn't even let the court get to the heart of the issue. She had an expert lined up for the hearing yet the state performed an emergency appeal (special action appeal) that would stop the proceeding from happening. It's easy to surmise what the government was afraid of--a loss.

The government circumvented the true nature of the proceedings by objecting to her having free counsel. If an indigent person with no legal experience or training attempts to conduct this hearing herself, how successful do you think she'll be?  Even the court recognized and admitted that these types of hearings are complicated. They necessarily involve the use of mental health experts to determine if someone is truly safe to possess a firearm again. Even if it's perfectly safe for her to possess a firearm again, let's not forget the bias hurdle she's going to have to overcome to win as well. When someone is deemed mentally ill, there's a stigma and fear that follows. Although most people suffering from mental illness are harmless, just look at how mental illness is portrayed on pop culture and the media. Yes, there have been very serious tragedies in our recent past that involve mentally ill offenders and no one wants to see that again. That's why these hearings are so important. That's why competent expert testimony is so important in these types of proceedings. We want good opinions so that a judge can balance safety with important constitutional rights. Even if you're not a gun person, due process applies to every right we hold dear: free speech, religion, assembly, and so on. And while there may be some sympathetic ears in government, it's not the prosecutor. I know because I'm fighting everyday to protect people from the raw power of the government. That comment is simply not true.

So what does this ruling mean?

The ruling further demonstrates just how important it is to have competent counsel in restoring important constitutional rights. It's telling enough that the government wanted to fight the court appointment issue so hard instead of getting to the meat of the issue. But as it stands, you must either move to restore your rights on your own or hire an attorney to assist you. Even if the restoration of rights is not mental health related, it's not simple. There are biases to overcome and the government will often object to you getting your rights back, even if you deserve and are eligible to get that right back. You'll want to put your best foot forward but that's hard to do without legal training and experience with the court.

The takeaway message is that the government will pay loads of money to take your rights away but it won't spend a dime to get them back. That's your responsibility. Whether you agree with that premise or not, it goes to show how important it is to seek legal help when it comes to preserving or restoring your constitutional rights.

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