State senator explains stance on HB88

January 24, 2014

I wanted to speak to you, my constituents and others in the State of Delaware regarding the recently defeated House Bill 88, and my thoughts on why I could not support this bill.

House Bill 88 did not come back for reconsideration last week when the Senate came back in to session. This bill was touted as a mental health bill by the Attorney General’s office. In my opinion, and upon close review of the bill HB 88 had little to do with mental health. This bill is a new way for the state of Delaware to confiscate firearms. Here are a few of my thoughts on the bill, and in no way constitute all the concerns I had with it.

The only parts of this bill that I could support were adding persons who have been found not guilty by reason of insanity, or guilty but mentally ill, as well as adding persons who have been found mentally incompetent to stand trial for a crime of violence to persons who are prohibited from possessing a firearm. All other parts of the bill deal with adding a new class of persons who may have their firearms seized by the state of Delaware, or who may be forced to relinquish their firearms to another person.

The civil procedure that was outlined to relinquish firearms or ammunition directs a mental health professional to report to local law enforcement, or the Delaware State police, any person that they feel may be a danger to themselves or others. The appropriate police agency is then required to investigate that claim, and if substantiated forward the complaint to the Attorney General’s office. The Attorney General’s office will then review the claim, and if they feel it is substantiated, they bring the complaint to a Superior Court judge. Only then is the party who is being investigated notified that there is an active investigation in process, and at that time are able to mount a defense to these charges. This person, as in any action brought before the court, has the right to an attorney, has the right to call witnesses, and has the right to cross examine their accuser. I had a couple of issues with this process.

1. Local law enforcement is overworked as-is. To add this new duty to them, and to have them make a determination of mental health state is a burden that I would not want to place on our towns’ and cities’ police departments. Moreover, if the firearms are seized, the local agency would have custody of these firearms and ammunition for an indefinite period of time. This raises the question of care for expensive or antique firearms, storage and security space in small police departments, and liability for any damages to firearms while in the custody of the police department.

2. The Attorney General’s office is also overworked for the workload that they are faced. Will these cases receive the proper attention and review?

One of the most disturbing aspects of this legislation was that the burden of proof that the state must obtain is less than is required to prove guilt in a traffic court. Let me say that again. The state has a higher burden of proof in proving that a person was speeding, ran a stop sign, did not use the turn signal properly, etc. (beyond a reasonable doubt) than was required in this bill to separate a person from their constitutionally protected right to possess a firearm (clear and convincing evidence).

Additionally, the amount of time that may be taken mount this case against a person and bring it to a court is alarming. Again, with police departments that are overburdened, and an Attorney General’s office that is overworked, and a court system that is also overworked, these people who may be a danger to themselves or others would still possess their firearms for days or weeks until their case is adjudicated.

We currently have a procedure for separating a person from their firearms. It is currently in Delaware code, and is currently being utilized. This process calls for an individual to be involuntarily committed to a psychiatric institution if they are a danger to themselves or others. Under current Delaware code, that person would then be considered a person prohibited from owning a firearm in our state. If a medical practitioner is concerned to the point that they feel a person should be separated from their firearms, this should be the vehicle in which the state ensures that a person is not able to have access to a firearm. House Bill 88 did not guarantee physical separation between a mentally ill person and a firearm. As we know from seeing news reports of other crimes involving firearms, persons prohibited, if left on the street, can and do obtain firearms regardless of any law prohibiting them from doing so.

I plan on introducing a bill later this week to add the aspect of HB88 that I and many others fully support; adding persons who have been found not guilty by reason of insanity, or guilty but mentally ill, as well as adding persons who have been found mentally incompetent to stand trial for a crime of violence to persons who are prohibited from possessing a firearm. This is an alarming loophole in our current Delaware Code, and one that I hope to see fixed very quickly.

Thank you for letting me explain my stance on this bill, and thank you for the opportunity to serve the people of the 19th District!

Brian Pettyjohn
Delaware State Senator; 19th District




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