Bill to take guns from mentally ill goes to governor

DOVER — The Senate passed the first major gun legislation of 2018, approving a bill that creates a path for taking guns from individuals with mental illnesses.

The measure was previously approved by the House of Representatives.

The bill was unopposed in either chamber. It now goes to Gov. John Carney, who will sign it.

House Substitute 1 for House Bill 302 would specifically prohibit people who have been committed to an institution for a mental disorder or found not guilty of a violent crime by reason of insanity, guilty but mentally ill or mentally incompetent from owning firearms unless they can prove they are no longer suffering from a disorder.

Mental health professionals would be required to inform law enforcement and arrange for the patient to be hospitalized or committed if a threat is made. They would have discretion to reveal confidential discussions to authorities.

If a law enforcement agency receives a report of someone who owns firearms and is believed to be dangerous, it would be obligated to investigate. Should the agency determine probable cause, it would file a report with the Department of Justice and seek from the Justice of the Peace Court a mandate for that person to give up their guns and ammunition.

The individual in question would not be notified ahead of time or given a court hearing.

The order would be good for 30 days, unless the Department of Justice chooses to seek an indefinite extension with the Superior Court or requests 15 more days to file a petition. A Superior Court decree would require a hearing to be held within 15 days if the accused person requests one.

Both courts can mandate a person cannot live with someone who has guns for the duration of the order.

While the Justice of the Peace Court order would require the person to surrender their guns to law enforcement, the Superior Court mandate would allow him or her to give them to a designee, as long as that designee does not live with the individual in question.

Decisions by the Superior Court could be appealed to the Delaware Supreme Court.

Named for former Delaware Attorney General Beau Biden, the proposal is based on legislation filed in 2013 after the 2012 shooting at Sandy Hook Elementary School in Newtown, Connecticut. That measure, one of the last and most significant pushed by Mr. Biden before he died of cancer in 2015, passed the House overwhelmingly but failed in the Senate.

Unlike the other gun bill pending in the General Assembly, House Substitute 1 for House Bill 302 received overwhelming bipartisan support.

“I’m glad the Senate received it as well as the House did this time,” main sponsor Rep. Dave Bentz, D-Christiana, said after the vote. “Obviously, there were questions that were unanswered on the Senate side five years ago. Looks like through our efforts we were able to address those in the new version of the bill and ease whatever concerns they had.”

The measure only passed after talks between Rep. Bentz and gun rights advocates led to the original bill being modified. The first version had called for a 60-day timeline for the agency to seek an extension, but an amendment cut it in half.

Lawmakers are expected to pursue related bills that would clarify how an individual can prove he or she is fit to own firearms and allow family members and law enforcement officers to petition the Superior Court for an order removing guns from the possession of someone believed to be dangerous.

Speaking to reporters after the vote, Gov. Carney called the measure “a really, really important piece of legislation.”

Last week, he urged lawmakers to pass several proposals awaiting votes in the General Assembly. Existing bills would prohibit the sale of “assault-style weapons,” criminalize magazines that hold more than 10 rounds, raise the age to buy a rifle from 18 to 21 and ban bump stocks, but the likelihood of the first three proposals becoming law is uncertain.

Tuesday, the governor reiterated that he views all the gun bills as important, saying just one or two becoming law fails to establish sufficient safeguards.

“I believe if you’ve got somebody who’s got a serious mental health problem and there are lots of signs and there’s due process in this piece of legislation that we ought to take guns away from them just like we do with somebody who has a protection from abuse order against them,” Gov. Carney said Tuesday.

Many mass shootings, such as the Feb. 14 massacre at Marjory Stoneman Douglas High School in Parkland, Florida, involve individuals who are determined to be mentally unwell, some of whom were known ahead of time to be potential threats to others or themselves.

While the Senate ultimately passed the proposal unanimously, it debated the bill for about 40 minutes, with several members posing questions about how it balances due process and public safety.

Minority Leader Gary Simpson, R-Milford, initially took issue with the provision regarding ownership of firearms by a person residing in the same household as an individual barred from owning guns, noting it could force someone to choose between giving up their guns or kicking their family member out.

Under the bill, both the Justice of the Peace Court and the Superior Court have the power to prohibit the person in question from living in a home with guns, although the court would not be required to do so.

“I can’t imagine the court, if the person is judged to be dangerous to society by having a weapon, that the court would let them keep the weapon, and I can’t imagine the court would let them go back home if there are weapons in the house,” Sen. Simpson said.

An attorney testified the measure gives judges leeway, meaning a prohibited person may be allowed to live in a home with guns kept in a safe the individual cannot open.

Sen. Colin Bonini, R-Dover, questioned if lawmakers would be encouraging the state “to get these firearms out of peoples’ hands, which is disturbing because it’s a constitutionally protected right.”

After being assured that was not the case and a similar procedure already exists for people involuntarily committed to an institution, he backed the measure.

While the American Civil Liberties Union of Delaware has expressed worries the bill violates due process, Rep. Bentz and Gov. Carney both believe the proposal is fair and necessary, although Gov. Carney said he was unaware of the specific scenario that could lead to somebody becoming homeless.

Democrats and Republicans alike pointed to the legislation as an example of bipartisanship in action — a rare thing when it comes to gun laws.

“I think this is a perfect example of what can be achieved when you have folks from disparate viewpoints … and senators and representatives who were willing to listen,” Sen. Anthony Delcollo, R-Marshallton, said.

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