Tuesday, June 25, 2013

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.

5 comments:

tom said...

Regardless of which side you take as to whether or not dealing drugs indicates a tendency toward violent behavior, it has absolutely no connection to mental health and therefore its inclusion in this bill violates the Delaware constitution's "One Subject At A Time" requirement and renders this bill Unconstitutional.

Further evidence that this provision has no business being here is the fact that in their recent overhaul of the State's drug laws, the General Assembly and Governor Markell reclassified a large number of drug offenses from felonies to misdemeanors, indicating a clear sense that they should not disqualify a person from possessing firearms.

JdL said...

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.

That would mean keeping guns out of the hands of anyone who works for the government.

As for you, Steve Newton, you are no libertarian. Please stop trying to pretend otherwise; you only bring discredit to those of us who believe in actual freedom.

Try reading some Thomas Szasz some time; perhaps you might learn something.

delacrat said...

This legislation would only affect felons and persons deemed mentally ill.

It's quite a leap to conclude that it would constitute "an open license for police to demand that firearms be taken away from almost anybody at almost any time."

Steve Newton said...

delacrat

You are factually incorrect: this bill contains several provisions that will take away a person's right to own firearms who has only been convicted of a misdemeanor.

tom said...

delacrat, you need to actually read HB 88. You have euther been lied to about its contents, or you are trying to deceive others.

and Steve, I think you need to reconsider your belief that portions of this bill make sense or can be amended to make sense. That might be the case if Delaware currently had no laws prohibiting felons and violent or crazy people from buying or posessing guns, but a quick perusal of state law will clearly show that is not true.

In addition to felons and persons deemed mentally ill, HB 88 will affect
- persons convicted of non-violent, non-felony offenses;
and people who have not been convicted of any crime, including:
- persons with criminal charges pending (even though they supposedly have a presumption of innocence);
- persons who fail to appear in court, whether or not they were ever served notice;
- anyone who has ever been voluntarily or involuntarily committed to a mental hospital or institution, even for observation or evaluation;
- persons reported to police as a possible danger to self or others by a "mental health professional" (a vaguely defined term that includes nurses and social workers), more on this point later...;
- and family members or roommates of any of the above.

The bill creaates a reporting requirement. Aside from questions of the constitutionality of such provisions, this raises a number of ethics and liability issues. Mental Health Professionals will be required to report statements made in confidence during treatment. Consider the fact that statements like "I want to kill X" are very common coloquialisms for expressing anger, hurt or frustration about people that you love and would never actually consider harming.

They will also be required to report anything on the federal government's rapidly expanding laundry list of "evidence of mental disorders" which includes such things as Military Service or any Occupation that has been linked to PTSD, granting a Power of Attorney over financial or personal affairs, seeking counselling or treatment for marital problems, anger, stress, anxiety, depression, ADD & its variants, alcohol or substance abuse, ...

The bill does not contain any requirement that police verify the credentials of the person making such a report. It does however explicitely state that they bear no liability for the consequences of their reports.

So if the police choose to "investigate" by kicking down your door at 3am, shooting your dogs, and holding your family at gunpoint while they tear apart your house looking for guns & ammo, the person who turned you in cannot be held responsible. And no doubt the cops will be ruled to have acted in "good faith" even if the accusation turns oft to be false or frauulent.

The beginning of HB 88's Synopsis reads "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. ... Statistically, mental illness has little to do with homicide perpetration but conversely increases the chance of being a victim of violence. This bill looks instead for propensities of violence, a much more reliable and evidence-based metric. This metric will also ensure that we can provide care to those more likely to commit violent acts and help destigmatize mental illness here in Delaware."

This may be good propaganda, but it is completely at odds with the actual text of the bill. The reporting requirement alone guarantees that gun owners will not seek mental health treatment but instead avoid it like the plague.

Another problem is that HB 88's confiscation provisions will be extremely difficult to enforce in a state that has no gun registration. This will probably lead to a problem with searches & seizures based on hearsay rather than probable cause.