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What is Going on in Florida?

Apparently Marion Hammer is pushing a bill that would put people who voluntarily submit to mental health treatment to NICS.

The bill, HB 1355, would prohibit the sale of guns to people who voluntarily undergo outpatient mental health treatment after being given an involuntary examination under the Baker Act — but only if certain provisions are met.

The bill passed the state legislature with only one vote against it and now awaits Scott’s signature before it becomes law. It has drawn attention from many, some urging Scott to veto the bill and others urging him to sign it.

“It’s the right thing to do,” Hammer said. “Keeping the guns out of the hands of dangerous people with mental illnesses is what everybody should want to do.”

From what it sounds like, this is roughly akin to pleading guilty in a criminal case. But if involuntary treatment would have been mandated, why not then proceed with the actual adjudication. If they revoke their voluntary status before treatment is completed, why not also go for an actual adjudication. If adjudication is difficult or impossible, I tend to think a better option would be revisiting the procedures.

Before gun ownership is restricted, an examining physician must first have found that the person is a threat to his- or herself or to others. The physician must also verify that if the person had not submitted to voluntary treatment, involuntary treatment would have been mandated.

Additionally, before agreeing to treatment, the person must have received notice that such treatment might restrict future gun ownership. That person must acknowledge receipt of such notice in writing.

Finally, a judge or magistrate must have reviewed the record classifying a person as a danger and ordered that the record be submitted to the Florida Department of Law Enforcement.

If those four requirements are met, then gun ownership would be limited.

“(The bill) does not cover people who voluntarily go to private counseling for help,” Hammer said.

I’m guessing involuntary examination under the Baker Act is roughly analogous to a 302 commitment in Pennsylvania, which counts for firearms disability for purposes of Pennsylvania law, but is not (as I understand it) considered to have enough due process for federal purposes. I’m concerned that NRA is pushing a law here that could have very bad consequences people’s Second Amendment rights without sufficient due process, but I am not an expert on how adjudications happen in Florida, or how difficult the process is.

Most firearms attorneys here in Pennsylvania will tell you that it’s routine for people in domestic situations to get taken in on a 302, triggering a sudden prohibition on firearms possession. Montco Firearms Attorney Jonathan Goldstein, who debated Ed Rendell on this topic recently, mentioned that it’s fairly common in domestic arguments. It takes no court, panel, or other kind of adjudication to get a 302, just the cops taking you in involuntarily (which is why if this happen, it’s advised that you go voluntarily). What’s being proposed in Florida would have a number of additional protections not available to Pennsylvanians, but I’m just curious why Marion Hammer is actively pushing this bill. It’s one thing to decide to go neutral on a bill, especially when there needs to be a sacrifice on the altar of “Something must be done!,” and you’ve whittled them down to something fairly innocuous. But quite another to be pushing it. I don’t think rights ought to be denied or disparaged without due process, and I’m very wary of setting a precent that voluntary treatment is grounds for a firearms disability. I think this will come back to bite us.

33 Responses to “What is Going on in Florida?”

  1. GunNoob says:

    The NRA is actively backing it too, last time I checked. I live in FL and the bill doesn’t make much sense to me but, in all honesty, neither does any of the things the politicians here do either.

  2. McThag says:

    Getting Baker Acted is just slightly harder than getting a domestic abuse restraining order in a divorce.

    One anonymous phone call, cop shows up to take you away… Nope, no way to abuse that!

    The thing that cheeses me off about this is the moment of choice. Agree to be voluntarily put away and there’s a process to get your rights back or go involuntarily and lose them forever.

    I’m willing to bet that not a single person who loses their rights under this will ever get them back because the people who can afford the legal assistance to get their rights restored have lawyers preventing the baker act from hitting them.

    • Baker Act provides for 72 hour evaluation hold, not involuntary commitment. (The latter is a long-term situation, and much more difficult.)

      • McThag says:

        The difference between theory and practice is that in theory they are the same; in practice they are not.

        I’ve seen the Baker Act in use in the real world and have zero confidence in this not leading to massive anonymous disarmament.

    • I guessing that one of the reasons that Marion Hammer is pushing this bill is recognition that mental illness is at the court of a lot of the mass murders, and many of the less publicized murders. It is not a particularly great solution (it doesn’t do a thing for non-gun murders, obviously, and probably only a little to keep guns out of the hands of mentally ill people). I can see why it might seem a useful step to avoid much more absurd proposals.

  3. What this bill effectively does is to make people who likely would have been involuntarily committed in 1970 ineligible to own firearms until they persuade a court that they are no longer dangerous. This is clearly inferior to returning to 1970 standards for commitment.

    The problem is that involuntary commitment is very difficult, and yet there are clearly people who are dangerously crazy out there. My guess is that it will do relatively little good, and relatively little harm. It is pretty narrowly drafted, unlike the New York State law.

    • MicroBalrog says:

      Confining people against their will should be difficult.

      • The only question is what standard of difficult. In 1970, it was preponderance of evidence that a person was mentally ill and would benefit from treatment. After Addington v. Texas (1979), the standard is much higher — not quite to the criminal conviction standard, but high enough that most people with serious mental illness problems are not only not hospitalized, they aren’t even receiving outpatient treatment.

        • MicroBalrog says:

          The answer is: “Very.”

          • It depends what level of murder, mass murder, homelessness, deaths by exposure, and general degradation of society you are prepared to accept, and the loss of liberty that is the inevitable result of those becoming more common parts of modern life.

  4. I am pretty sure that the article you link to is incorrect. HB-1355 provides for this firearms disability under a total of three conditions, one of which is that the examining physician certifies that if the patient had not voluntarily admitted himself, the doctor would have filed an involuntary commitment petition with the court — a much more difficult measure than Baker Act hospitalization.

    • McThag says:

      That’s the text from the email the NRA sent me…

      • Interesting. Yes, it appears to be the case, yet an observational hold is not a firearms disability under federal law. Maybe I am missing something here…

        • If you read Florida Statutes 394.463(i):

          (i) Within the 72-hour examination period or, if the 72 hours ends on a weekend or holiday, no later than the next working day thereafter, one of the following actions must be taken, based on the individual needs of the patient:
          1. The patient shall be released, unless he or she is charged with a crime, in which case the patient shall be returned to the custody of a law enforcement officer;
          2. The patient shall be released, subject to the provisions of subparagraph 1., for voluntary outpatient treatment;
          3. The patient, unless he or she is charged with a crime, shall be asked to give express and informed consent to placement as a voluntary patient, and, if such consent is given, the patient shall be admitted as a voluntary patient; or
          4. A petition for involuntary placement shall be filed in the circuit court when outpatient or inpatient treatment is deemed necessary. When inpatient treatment is deemed necessary, the least restrictive treatment consistent with the optimum improvement of the patient’s condition shall be made available. When a petition is to be filed for involuntary outpatient placement, it shall be filed by one of the petitioners specified in s. 394.4655(3)(a). A petition for involuntary inpatient placement shall be filed by the facility administrator.

          When you read HB-1355, page 3, one of the three requirements for firearms disability is:

          (B) The examining physician certified that if the person
          did not agree to voluntary treatment, a petition for involuntary outpatient or inpatient treatment would have been filed under s. 394.463(2)(i)4., or the examining physician certified that a petition was filed and the person subsequently agreed to voluntary treatment prior to a court hearing on the petition.

          Clearly, a doctor deciding that someone needs an observational hold is not what is intended.

          • McThag says:

            I’ll try a different tack.

            The only people excited about this law and who think it’s a good thing are lawyers, lobbyists and politicians.

            Not once has that combination been good news for a common schlub.

            It seems to me that this law describes:

            You get Baker Act’d and the doc decides that you probably need more help.
            You agree, and get treatment, you lose your rights.
            You disagree, treatment is forced on you, you lose your rights.

            If you agree, you get a slim chance to recover your rights if you’re wealthy and are willing to blow a staggering amount of money on a lawyer.

            It really seems to boil down to the word of two people. The person who makes the initial call to the police you need Baker Act’d and the doc who thinks you need more treatment. It’s not like the professional organizations for doctors are anti-gun or anything.

            The whole thing stinks of no due process.

    • MicroBalrog says:

      So now the fact that the doctor would have filed a petition is enough to deprive someone of their constitutional rights, *even if there is no way of knowing if his petition would have carried the day in court*?

      Woah.

      • Matthew Carberry says:

        Micro,

        I think you’re misunderstanding it by pulling that out of context, but I could be wrong.

        The “would have filed” merely allows the -option- to voluntary admit yourself and lose privileges until you petition for return. It doesn’t take them.

        To use the legal parallel, under this bill you can only preemptively “plead guilty” and lose privileges if there would have been an indictment. If the doctor says, “nope, wasn’t going to petition” you can’t lose your rights by volunteering.

        It’s a protection against preemptively giving up your rights when they aren’t at risk, as I read it. You can choose to not volunteer and get the full hearing, but even then you can still volunteer prior to the hearing. It enables you to surrender your rights on your own terms, which would likely help you get them back as it shows responsibility.

        Look at what you have to sign off on.

        “I understand that the doctor who examined me believes I am a danger to myself or to others. I understand that if I do not agree to voluntary treatment, a petition will be filed in court to require me to receive involuntary treatment. I understand that if that petition is filed, I have the right to contest it. In the event a petition has been filed, I understand that I can subsequently agree to voluntary treatment prior to a court hearing. I understand that by agreeing to voluntary treatment in either of these situations, I may be prohibited from buying firearms and from applying for or retaining a concealed weapons or firearms license until I apply for and receive relief from that restriction under Florida law.”

      • There are three different factors, all of which must occur — not just that one.

        • Phssthpok says:

          Because a State (and it’s actors) would NEVER abuse an expanded power…

          (from All Nine Yards blog):
          “As reported by the Local Paper… (link withheld to protect the innocent)

          “The chief said there was no need for a warrant because the guns were not taken for evidence, but for “safekeeping.”

          “He was not arrested, he was taken under the Baker Act,” Chitwood said. “This was not a criminal case, so we did not need a warrant.”

          http://www.allnineyards.com/2013/05/florida-carry-sues-the-city-of-daytona-beach-its-mayor-and-police-chief/

          http://www.allnineyards.com/2013/05/daytona-pd-chief-chitwood-not-much-of-a-psychologist/

          This case is happening **NOW**, And Marion Hammer/NRA are backing this bill?? Between throwing us under the buss on Open carry in Fl., and now THIS, there’s a REASON I refuse to give them any money!

          • State power is dangerously abusable, but what’t the alternative? Each time we have a seriously insane person go on a gun rampage, we lose (at least for a while) a significant fraction of the population.

            • TigerStripe says:

              Define serious mental illness. A depressed person could have suicidal thoughts once, his family call the police, be confined committed either voluntarily or involuntarily, and lose his gun rights forever unless he has the financial resources to hire a good attorney to fight to have a right restored.

              Your motive(s) may be well intentioned but the outcome could be tragic for people who have a mental illness but would never commit any acts such as Newtown or Aurora.

              • Matthew Carberry says:

                But that isn’t how it happens. You merely have “suicidal thoughts”, your family -maybe- refers you, you -maybe-, if grounds are actually found, do the 72 hours without loss of rights.

                Then a doctor -may- make a call on involuntary commitment, which requires a hearing if you refuse to voluntarily comply, you then -may- lose that hearing and then -may or may not- apply successfully for your rights back.

                This bill doesn’t change any of that process. What you describe can already occur.

                • TigerStripe says:

                  So you’re saying it’s a feel good measure that *might* slightly change the process. Hmm.

            • Kermit says:

              The alternative is liberty. Tha alternative is refusing to sacrifice someone else’s freedom to protect a pice of our own.

              Mental illness is not the problem. It has never been the problem. Point out -where- all these mentally ill people went nutso. Point out they don’t do this where the victims can easily fight back. Point out that this shows a choice, and a rationality on some level, on the part of the shooter. Point out that this means the shooter knows, on some level, exactly what he’s doing, and that he’s taking measures to maximize the kill count. Point out that this doesn’t happen around people who are free and armed; even if someone does attack, they are able to respond, and would-be mass shooters don’t last long.

              What you do not do, ever, is roll over. You do not compromise in favor of the enemy. You do not compromise by giving away another piece of someone else’s rights. You point out the enemy’s fallacies. You point out his lies. You point out that slippery slope. Point out the tyranny inherent in gun grabbing, and where it leads.

              … Point out that much the same thing was done in the 1920’s, 30’s, and 40’s, in Europe, America, and elsewhere, where those deemed “unfit” were deprived of rights, liberty, property, and as in the case of Europe and Asia, life.

              Seriously. I know I’m invoking Markley’s Law, here, Clayton, but this denial of rights based upon mental fitness smacks a little too much of a “nazi light” version of political eugenics. If we can take away this right, based on “mental fitness,” then we can take away ANY right because we think they’re “dangerously crazy.”

              Might just be we’re in power, and they’re our political opponent. Let’s declare them insane, and get them out of the way, eh? Oh, and let’s audit them, listen in on their calls, and such.

              This bill doesn’t go -that- far, I know. But it’s the nose of the camel. It doesn’t take much to see where this will try to go. Keep it out of the tent, or we’ll shortly have a bedmate that spits.

              • Sebastian says:

                What you do not do, ever, is roll over. You do not compromise in favor of the enemy. You do not compromise by giving away another piece of someone else’s rights.

                That’s nice and all, but it doesn’t work. People naively believe you can always just win in politics if you refuse to comprise. I hate to tell you, but if a legislature has the votes the screw you, it’s going to screw you. You can either stand on your principles, and feel better about yourself when they screw you, or you can try to cut a deal to make the screwing less severe. You can’t always win in representative government. That’s just how it works. Sure, the fact that it’s a right was supposed to remove this from the political process, but that doesn’t mean much either, unfortunately. So what do you do?

                I’m not saying that’s the case here. Maybe this wasn’t an issue we needed to give on. I don’t believe in giving away anything for nothing, or because it’s “the right thing to do.” But sometimes you’re choice is only how bad you get screwed.

                • MicroBalrog says:

                  There are advantages to getting screwed worse.

                • Kermit says:

                  No, you won’t always win in politics if you refuse to compromise.

                  But you always lose if you compromise in the other guy’s favor.

                  We’ve been told, over and over, that we must always compromise, lose a little bit, so that we don’t lose everything.

                  Yet, recent history has shown this not to be the case. The Heller and McDonald decisions both proved that, when we DO stand and fight, we CAN win. No, we won’t ALWAYS win, but we CAN.

                  Start by debunking the bogus premise that mental health issues are the problem. The problem is evil people. The problem is bureaucrats trying to create a perpetual victim class, then pretend to pander to said class in order to retain and gain power. The problem is a broken family, a broken society, that believes government acts in loco parentis and trusts it implicitly, then runs wild, heedless of the consequences, because “government will protect me.”

                  No, it’s not an issue we needed to give on. There’s never an issue we “need to give” on. There’s issues we win, issues we lose, and issues we return to fight again. The Left never gave up on gun bans after the 94 AWB expired. Why should we give up?

                  Yes, we will get screwed on some things. We have in the past, and will again. But that does not change what is worth fighting for.

                  Once we approach an issue with fear, believing our only choice is “how badly we’re screwed,” we’ve already lost.

            • MicroBalrog says:

              So you’re suggesting we should make it pre-emptively easier to take the gun rights of, and imprison, insane people, even if they have not been proven to be a threat to themselves or others, so as to avoid losing gun rights?

              Avoid losing gun rights by losing guns rights?

              The solution is to fix he culture. If you have a culture with an inherent reflex to respond to every mass-shooting or terrorist act by more laws, you will always lose in the long run.

              • Matthew Carberry says:

                If I’m reading it right this doesn’t change the existing involuntary mechanisms, it simply adds a voluntary one.

                How does that equal “making it easier” other than actually increasing the capacity of individuals to assert their own wishes in a bad situation?

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