Objections to (and Amendments for) HB 88

It may alienate the affections of some of my Libertarian friends to admit it, but I do believe there is a responsibility to keep firearms out of the hands of people who are clinically mentally deranged.

Probably I take this stance because for over a decade in the US Army and Army National Guard I worked as a mental health counselor, and among my other responsibilities was assessing the potential of a client/patient to be a danger to himself/herself or others.

I had to clear people who had attempted suicide (or, at least, made suicidal gestures) from the hospital.

I had to assess people with depression, medicated schizophrenia, and other chronic mental illnesses and make recommendations to commanders whether these individuals should be either (a) separated from the service or (b) retained and be continued to have access to weapons for live-fire exercises and combat.  I've made that call in both directions, and to this day (it has been well over a decade since the last time such came up) remember the difficulty deciding if what I did was the right thing or not.

So when I come to HB 88, which, according to the legislative synopsis, is attempting to

This Act is designed to create procedures in Delaware for making sure firearms are not in the hands of dangerous people while protecting due process and not creating a barrier to care for those suffering from mental illness. 

... I am not completely unsympathetic.

On the other hand, as is usual in Delaware, a good premise has been significantly compromised by the addition or omission of several key sentences that either (a) expand this bill beyond its stated intent; (b) fail to provide a critical safeguard for mental health professionals; or (c) sets up too weak a standard for police to meet in moving to deny firearms ownership.

Issue #1:  extending authority beyond stated intent:



To wit, try this sentence for those who are not to be allowed to own firearms:

(3) Any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug or central nervous system depressant or stimulant as those terms were defined prior to the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16 

This provision is NOT about keeping firearms out of the hands of those with a propensity toward violence.  Instead, it is a blanket provision that empowers the State to take the firearms away from everyone (a) convicted of simple possession of marijuana or (b) even people convicted of the abuse of prescription medications.

In a country that is moving rapidly toward a consensus on the decriminalization and legalization of marijuana, this is not only ridiculous but also goes against good science.  There is NO available research to suggest that recreational users or marijuana are violent; indeed, most research concludes exactly the opposite.

Likewise, prescription drug abuse (chiefly pain medications) is not associated with any particular increase in potential for violence, and this legislation runs the risk of criminalizing a medical problem and making it far less likely that people with a prescription drug dependency will seek help.

Reasonable people can differ on the question of whether drug-dealing is an inherent indicator of violence, but even if we allow that part to remain in, the sentence should be amended as follows before anybody even thinks about voting for this legislation:

(3) Any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug or central nervous system depressant or stimulant as those terms were defined prior to the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16

Issue #2:  Protection for mental health providers

You almost have to have been a mental health provider to get this one.  This legislation creates an obligation on the part of mental health providers to notify authorities if they believe someone is a danger to self/others.  Moreover, the legislation indemnifies them against liability for so acting:

(c) Whenever a patient has explicitly threatened to cause serious harm to a person or property, or a mental health services provider otherwise concludes that the patient is likely to do so or is dangerous to others or self, as defined in 16 Del. C. § 5122 and the mental health services provider, for the purpose of reducing the risk of harm, discloses any confidential communication made by or relating to the patient, no cause of action, either criminal or civil, shall lie against the mental health services provider for making such disclosure.

Pair that with this sentence about the requirement to notify:

(a) Except as provided in subsection (d) of this section, n No cause of action shall lie against a mental health services provider, institution, agency or hospital, nor shall legal liability be imposed, for inability to prevent harm to person or property caused by a patient unless:                                (1) The patient has communicated to the mental health services provider an explicit and imminent threat to kill or seriously injure a clearly identified victim or victims, or to commit a specific violent act or to destroy property under circumstances which could easily lead to serious personal injury or death, and the patient has an apparent intent and ability to carry out the threat; and                                (2) The mental health services provider fails to take the precautions specified in subsection (b) of this section in an attempt to prevent the threatened harm. 

The problem here is that the legislation tips too far in the direction of requiring mental health providers to err on the side of "take away the guns" rather than an exercise of reasonable professional judgment.

Patients say things in therapy all the time that could technically fall under sentence (1) above, and it is ALWAYS a judgment call on the part of the mental health professional how to respond.  Many potentially suicidal clients are maintained day-to-day and week-by-week on contracts by mental health providers.  Many people with medicated and controlled mental illnesses are encouraged to discuss what they FEEL like doing, or what they FANTASIZE about doing as part of their therapy.  I can tell you from personal experience that there is often a very fine line for the mental health provider in determining whether this is a therapeutic experience or a real threat.

Moreover, what is at the time NOT a real and credible threat could be viewed as such in hindsight if an individual later (sometimes much later) does go on to commit a violent act.  (How long after the last time a mental health care provider sees a patient is too long to hold that provider accountable?)

The vast majority of mental health provides take their jobs very seriously, which includes taking the responsibility for dealing with real, credible threats by their patients.  What I fear here, however, is that the bar for provider liability is set so low as to encourage the excess practice of what could be termed "defensive therapy."  How big a chance of violence is too big to take?  50%?  10%?  1%?  1/10 of 1%?

It is also important to note that the training, experience, and orientation of different providers will cause them to view situations differently.

I would therefore amend this provision as follows:

(1) In the professional opinion of the mental health services provider, based on current standards and practices within the field, the patient has communicated to the mental health services provider an explicit and imminent threat to kill or seriously injure a clearly identified victim or victims, or to commit a specific violent act or to destroy property under circumstances which could easily lead to serious personal injury or death, and the patient has an apparent intent and ability to carry out the threat;

Issue #3:  Too weak a standard of proof

This legislation provides

(b) The Department shall have the burden of proving by a preponderance of the evidence that the respondent is dangerous to others or self as defined in Section 5122 of Title 16. 

"Preponderance of the evidence" is the weakest possible legal standard that could be used here.  It literally means that 50.0001% of the evidence supports the claim, or that the claim is "more likely than not" to be true.  In legal practice, preponderance of the evidence is not even held to require the investigators or prosecutors to have a personal moral conviction that they are correct in their conclusions.

This standard should be amended to bring this legislation more closely in line with normal standards of jurisprudence and presumptions of innocence:

(b) The Department shall have the burden of proving by clear and convincing evidence a preponderance of the evidence that the respondent is dangerous to others or self as defined in Section 5122 of Title 16. 

Clear and convincing evidence is a significantly higher standard, but it is far more appropriate to the stated legislative intent.

Otherwise, this legislation is exactly what its detractors claim:  an open license for police to demand that firearms be taken away from almost anybody at almost any time.