House Bill 285
149th General Assembly (2017 - 2018)
House Administration 12/14/17
The General Assembly has ended, the current status is the final status.
AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO POSSESSION OF DEADLY WEAPONS BY PERSONS PROHIBITED AND TITLE 16 OF THE DELAWARE CODE RELATING TO HEALTH AND SAFETY.
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. This Act intends to put Delaware at the forefront of this important issue by not simply looking narrowly for 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. Specific components of this Act are set forth below. This Act applies when a person who has been committed to a hospital for treatment of a mental condition by a judge shall be deemed a person prohibited. The current law appears to apply to “any person who has ever been committed for a mental disorder,” but in reality this only applies to persons who have been involuntarily committed and subject to adjudication such as a hearing. It also clarifies that perpetrators of violent crimes who have been found Not Guilty By Reason of Insanity, Guilty But Mentally Ill, or Mentally Incompetent to Stand Trial are persons prohibited, including juveniles who fall into those categories. The provisions of § 1448B will not retroactively apply to any persons adjudicated in the past, which would create undue burden. This Act expands the definition of “persons prohibited” to include those persons who are prohibited from possessing firearms pursuant to a court order under the procedures set forth in § 1448B of Title 11. Newly created § 1448B sets forth a procedure whereby law enforcement, upon receiving a report of a violent person and who is demonstrating behaviors that the provider believes are dangerous can refer the matter to the Department of Justice to petition the Superior Court for an order requiring such person to relinquish the person’s firearms or ammunition. This Act revises and clarifies an existing statute, 11 Del C. § 5402, which currently solidifies the need for mental health professionals to report those with mental illness who may be a threat to others. Currently, the section contains a limited duty of a treating hospital to warn law enforcement of a specific threat, but this clarifies the original intent of the section and requires that to avoid liability that all treating mental health professionals must report dangerous persons to law enforcement. The appropriate law enforcement agency must then determine whether a civil action should be initiated under newly created § 1448C of this Title, to relinquish the person’s firearms or ammunition and to take appropriate investigative action. Pursuant to § 1448C, the Court may order dangerous persons to relinquish to a law enforcement officer, voluntarily or otherwise, any firearms or ammunition owned, possessed, or controlled by such person. The Court may also, in its discretion, issue an order directing any law enforcement agency to forthwith search for and seize firearms and ammunition of any such person prohibited upon a showing of good cause by the petitioner. The court order to relinquish firearms would issue upon a finding that the person was prohibited, without further showing. The order authorizing police to search for and seize weapons would require a further showing, akin to an affidavit in support of a warrant, of “good cause” that the prohibited weapons would be found in a particular place or in the possession of the person prohibited. Any person subject to an order of the Court pursuant to § 1448C may petition the Court for an order to return firearms or ammunition by establishing to a preponderance of evidence that he or she is not a danger to self or others. In addition, as is the case under the current law, any person who is adjudicated to be a person prohibited pursuant to this Act has the opportunity to demonstrate, pursuant to § 1448A of Title 11, that he or she is no longer prohibited from possessing a firearm and therefore is no longer a person prohibited.
Takes effect upon being signed into law