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Biden, legislators unveil measure to expand protections against dangerous persons with guns

Date Posted: Monday, April 22nd, 2013
Categories:  Criminal Department of Justice Press Releases

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Wilmington – Joined by leaders from the medical community, law enforcement, and Delaware Health and Social Services Secretary Rita Landgraf, Attorney General Beau Biden and lawmakers today unveiled legislation focused on making Delaware families and communities safer by ensuring that firearms are kept out of the hands of dangerous individuals and those who are barred by law from owning or possessing guns.
 
            “This bill is directly responsive to the Aurora, Colorado, Virginia Tech, and other mass shooting incidents,” Biden said.  “This legislation is focused squarely on keeping our families and communities safer by ensuring that guns are kept out of the hands of individuals who have demonstrated that they are a danger to themselves and others.”
 
The legislation is part of a comprehensive approach to reducing gun violence that has been undertaken since last fall.  In January, Biden and Governor Markell unveiled a package of gun violence prevention measures, including expanded background checks and mandatory reporting of lost and stolen firearms.  And earlier this month, Biden and a bi-partisan group of legislators announced a package of four bills that toughen penalties for offenders who commit crimes with guns, including imposing mandatory prison sentences for individuals convicted of unlawfully carrying a concealed firearm, felony gun possession to the list of serious violent felonies that can trigger enhanced prison sentences under Delaware’s habitual offender statute, significantly increasing prison sentences for violent offenders who are convicted of possessing a gun, and including juvenile adjudications for violent felonies in triggering minimum prison sentences if they are later convicted of a gun offense.
 
State and federal law spell out several specific categories of people who are not allowed to possess firearms, including those adjudicated to have serious mental illnesses.  The legislation unveiled today strengthens that prohibition to include dangerous individuals who are seriously mentally ill.  Today’s proposal puts Delaware at the forefront of efforts by states to keep guns out of these and other dangerous people who are prohibited under the law from possessing guns by doing the following:
•         Expanding the mental health prohibition in state law to include individuals determined by a court to be “a danger to themselves or others”, individuals found guilty but mentally ill or not guilty by reason of insanity, and those found incompetent to stand trial. 
•         Strengthening state law by creating a responsibility for mental health professionals to notify law enforcement if, in their professional opinion, they believe a patient is a danger to themselves or others.  Once a report is made to law enforcement, if an investigation substantiates the threat, a referral will be made to Biden’s office, which could file a petition with the Court.  If a judge agrees that the individual is a danger to themselves or others, they would be added to the persons prohibited list that is shared with the national background check system.
•         Giving the Court the authority to order any person who is legally prohibited from possessing or owning guns, including the dangerously mentally ill, to relinquish the guns or ammunition they possess to law enforcement.  This process already exists in cases where a Protection From Abuse (PFA) order is issued against an individual.
 
Importantly, the legislation provides clear constitutional due process protections that give individuals who are prohibited from owning guns to have that right restored by demonstrating to the Court that they are no longer a danger to themselves or others or are no longer a person prohibited from owning or possessing guns.
 
The measure builds on two important strides Delaware has already taken to reduce gun violence.  The first is Delaware’s leadership, under Governor Markell’s direction, in providing mental health records to the national instant background check system so that persons prohibited from possessing guns for mental health reasons are flagged in background checks.  The second is the General Assembly’s passage last week of expanded background check requirements for firearms purchases. 
 
“As the President said, we know people with mental illnesses are much more likely to be the victim of a violent crime than the perpetrator,” Biden said in stressing that simply seeking mental health treatment does not prohibit a person from owning or possessing a gun under current law or this legislation.  “Treatment is critically important and can be very effective and Delawareans with friends and family who experience mental illness should encourage them to take advantage of the many mental health services that are available.”  However, Biden explained that because the existing law governing gun possession prohibitions for mental health is so narrow it is an area where action is needed.  He noted that only a very small number of background check denials nationwide are for mental illness reasons – just one percent of all denials in 2010, for example.
 
“The focus of this bill is to prevent legal access to guns for those individuals who have been identified to have an inability to think clearly and make informed rational decisions,” said Rep. Barbieri, D-Newark. “A person found guilty but mentally ill, not guilty by reason of insanity, or incompetent to stand trial most likely does not have the mental faculties to responsibly handle a firearm. this bill addresses a critical area that is part of debate over how to reduce gun violence.  If this bill keeps one person from killing themselves or from killing another person, then I feel I have done my job as a public servant and as a person who has sworn to uphold the constitution.”
 
State Representative Deborah D. Hudson (R-Fairthorne), a prime sponsor of the legislation, said, “As policymakers, the tragedies at Sandy Hook Elementary have consumed our hearts and minds.  As a result, we want to make sure we are doing everything we can so that it never happens again.  A big part of that has to do with keeping guns out of the hands of those who are deemed mentally unstable and dangerous.  I realize this legislation will not solve every issue or address each concern, but I am confident this bill will go a long way in protecting the public from people who have the potential for using a weapon in a harmful way.  If it is determined that someone is a threat to others, law enforcement and the justice system will now have the ability to remove firearms from their possession.”
 
“This updates and makes clear our commitment to keep firearms away from people who shouldn’t have them in the first place,” said Sen. David Sokola, D-Newark, the bill’s lead Senate sponsor. “This also is important because, requiring mental health professionals to report threats by their patients to kill or injure people, will help prevent some of the tragic incidents we’ve seen around the country.”
 
Health and Social Services Secretary Landgraf said, “Far too often we experience in our state the loss of life from suicide and homicide, and many involve the use of a firearm.  We need to do all we can to ensure that individuals who need mental health treatment receive that treatment and this legislation continues our support of that goal.”
 
            Dr. Neil Kaye, President of the Delaware Psychiatric Association, was pleased to work with Biden’s office and others in drafting this legislation.  He stated: “The focus of this effort must be on an individual’s behavior, not simply on mental illness.  Fundamentally, there is a need to look at dangerous behavior, and this bill is an important step in that direction.”
 
James Lafferty, Executive Director of the Mental Health Association of Delaware, echoed Kaye in commending the collaborative effort that resulted in the legislation, stating “I commend Attorney General Biden for listening to our concerns.  This bill reflects significant input from many constituencies, including the medical and mental health communities.”

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