House Bill 302
149th General Assembly (Present)
If original bill has not been considered in committee, the substitute takes place of original bill. If original bill has been considered in committee, the substitute will be assigned to committee for consideration.
AN ACT TO AMEND TITLE 11 AND TITLE 16 OF THE DELAWARE CODE RELATING TO INDIVIDUALS WITH MENTAL ILLNESS.
This Act is designed to create procedures in Delaware for making sure firearms are not in the hands of dangerous individuals while protecting due process and not creating a barrier to care for those suffering from mental illness. Instead of labelling all individuals with a mental health diagnosis as dangerous, this Act refocuses attention on individuals who have indicated they are dangerous to others or themselves. Statistically, mental illness has little to do with homicide perpetration but rather increases the chance of being a victim of violence. This Act looks instead for propensities of violence, a much more reliable and evidence-based metric. This metric will also ensure that Delaware can provide care to those more likely to commit violent acts and help destigmatize mental illness here in Delaware. Currently, § 1448(a)(2) prohibits “any person who has ever been committed for a mental disorder” from purchasing, owning, possessing, or controlling a deadly weapon, but this paragraph only applies to individuals who have been involuntarily committed after a hearing. Section 1 of this Act 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, including juveniles who fall into these categories, are persons prohibited from purchasing, owning, possessing, or controlling a deadly weapon. It also expands the definition of “persons prohibited” to include those individuals who are prohibited from possessing firearms by a court order issued under the procedures established by Section 2 of this Act. Section 2 of this Act creates § 1448C of Title 11 and establishes a procedure by which law enforcement, upon receiving a report that an individual is demonstrating behaviors that a mental health services provider, institution, agency, or hospital believes are dangerous, must investigate to determine if probable cause exists to believe an individual’s firearms and related ammunition should be relinquished. If so, law enforcement must immediately remove any firearms or ammunition and refer the matter to the Department of Justice, which may petition the Superior Court for an order requiring the individual to relinquish the individual’s firearms and ammunition. If the Department of Justice does not file a petition within 60 days of law enforcement removing the individual’s firearms or ammunition, law enforcement must return the firearms or ammunition. If the Superior Court finds by clear and convincing evidence that the individual is dangerous to others or self, the Court must order the individual to relinquish to a law enforcement officer, voluntarily or otherwise, any firearms or ammunition owned, possessed, or controlled by the individual. The Court may issue an order that allows an individual to relinquish firearms and ammunition to a designee of the individual who does not reside with the individual and is not a person prohibited under § 1448 of Title 11 and who the Court finds will keep firearms or ammunition owned, possessed, or controlled by the individual out of the possession of the individual. The Court may also issue an order directing any law enforcement agency to immediately search for and seize firearms and ammunition of any such person prohibited shown to have ownership, possession or control of a firearm or ammunition. Any individual subject to the Court’s order 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, an individual who is adjudicated to be a person prohibited under § 1448(a)(2)b. and c. of Title 11, added by Section 1 of this Act, has the opportunity to demonstrate, under § 1448A(l) of Title 11, that the individual should be relieved of the person prohibited status. Section 3 of this Act revises and clarifies an existing statute, § 5402 of Title 16 , which currently codifies 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 mental health professionals to warn law enforcement of a specific threat. This Act clarifies the original intent of the section by requiring that to avoid liability all treating mental health professionals must report dangerous individuals to law enforcement. The appropriate law enforcement agency must then initiate an investigation and take other actions required under Section 2 of this Act. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual. Section 4 of this Act makes it effective 90 days after its enactment into law. Finally, Section 5 of this Act names it the “Beau Biden Gun Violence Prevention Act.”
Takes effect upon being signed into law