Firearms Possession Bill Passes House

This past week, the House passed a bill, S.141, by a vote of 80 to 62. The bill has three main components: (1) it prohibits violent felons from owning firearms, (2) it requires state courts to submit to the National Instant Criminal Background Check System (“NICS”) the names of those whom a court has adjudged to be a danger to themselves or others due to mental illness, and (3) it establishes a process for individuals who are no longer so adjudged to regain their rights to purchase and possess firearms. This is a bill that both respects the Second Amendment and protects public safety.

It was an interesting, although sometimes frustrating debate. Throughout this session I have respected and understood the rationale behind different perspectives even if I disagreed with them. But most of the arguments against S.141 were worthy of little respect as they mostly relied on conspiracy theories, irrelevancies, and misinformation. Those opposing the bill complained that it was born of out-of-state money supplied by Michael Bloomberg (the previous Mayor of New York City and an opponent of the National Rifle Association). A conspiracy theory and, more importantly, irrelevant. The bill had broad support from Vermonters, including many of my own constituents.

Opponents also argued that the bill would lead to veterans declining to seek treatment for ailments such as Post Traumatic Stress Disorder out of fear that doing so would result in their losing their guns. Shamefully, opponents of the bill have obscured the purpose of the legislation and have stoked this very fear. If any veteran declines to seek treatment after this legislation passes, it will not be due to the contents of the law, but to the rhetoric of its opponents. Under the law, seeking voluntary treatment for a mental illness in no way would cause one’s name to be submitted to the NICS. A person’s name is submitted to the NICS only if a court finds by clear and convincing evidence that an order should be issued requiring that individual to enter treatment because he or she is a danger to himself, herself, or others.

S.141 stood on its own merits. During the floor debate, a number of proponents of the bill offered moving and persuasive testimony. One member, a Vietnam veteran, explained that he has received voluntary treatment over the past 30 years in his fight with Post Traumatic Stress Disorder. S.141 would not have applied to him, he noted. Another member closed the debate by telling of his brother who had been adjudged to be a danger to himself but was nonetheless able to purchase a firearm, which he used to commit suicide.

In explaining her vote, another proponent of the bill summed up the issue nicely:

“Vermont has a strong culture of gun responsibility, but giving easy access to violent felons has never been part of that. Federal law already prohibits dangerous people from possessing weapons, but right now aspects of this law can’t be enforced at the state level. We want our state to be a place where a violent felon knows that if he or she has a gun they will be prosecuted. We want the family members of those who have recently been adjudicated as a danger to themselves to know that if their loved one tries to buy a gun at a gun shop, the background check will stop them. We want to be clear that people can recover from mental illness, and that if someone who has been previously adjudicated gets better, there is a process in place so that they can get their rights restored. The bill does all of this, while carefully protecting the right to bear arms.”

So, probably the most controversial bill that we will face this session is behind us. There will, of course, still be disagreements and heated debate when the House takes up other issues such as requiring paid sick leave. It should continue to be engaging over the final few weeks of the session.

Some Q & A Regarding the Gun Bill

Yesterday, House Judiciary passed out of committee a bill that would restrict gun ownership rights of violent felons and those who are a danger to themselves and others. Check out my April 11 blog post for more details on the bill. The following provides some answers to questions and concerns that I have been receiving from folks regarding the bill.

Q: Will this bill force people to decide whether they want to seek help or treatment and risk losing their right to have a firearm or not get help and keep their rights?

A: No. Seeking voluntary treatment does not lead to submission of a person’s name to the Registry. It is only by way of a court adjudication finding that someone is in need of treatment and is committed to the custody of the Department of Mental Health that a person’s name is submitted to the National Instant Criminal Background Check System (“NICS”). Through such an adjudication, a court may issue an order of hospitalization or order of non-hospitalization. Both such orders require a finding, by clear and convincing evidence, that an individual is a danger to himself, herself, or others.

Q: Will this bill make it almost impossible to have one’s rights restored once someone has been deemed no longer a threat to himself, herself, or others?

A: After an individual is no longer in the custody of the Department of Mental Health (in other words, is no longer subject to an order of hospitalization or order of non-hospitalization), the reason why that individual was put onto the NICS in the first place has been removed. Nevertheless, there remains a risk of relapse of such a person, particularly within one to two years after custody has ended. There are different ways to balance the procedure for regaining one’s rights and the risk of relapse.

The bill passed by the Senate addressed the balance by imposing an 18-month waiting period between the date on which a person is no longer in the custody of the Department of Mental Health and the filing of a petition for relief from disability (to get one’s rights to gun ownership back). The individual would have to show by a preponderance of the evidence that he or she is no longer in need of treatment and that it would not be against the public interest if relief were granted.

House Judiciary amended this provision. It eliminated the 18-month waiting period before a petition can be filed. Instead, the petition can be filed as soon as a person is no longer subject to an order of hospitalization or non-hospitalization. But, the State’s Attorney or Attorney General has six months in which to file an objection to the petition. This, in effect, will provide at least a six-month waiting period. If there is any question about whether granting the petition would increase the risk to the public interest, the State’s Attorney or Attorney General would likely file an opposition. It would thereafter take months for the petition to be resolved in Court. The bottom line is that, practically speaking, there will be sufficient time after release from custody to ensure that an individual has not relapsed and become a danger to himself, herself, or others.

Q: Isn’t this bill redundant with federal law and thus unnecessary? Isn’t this a solution looking for a problem?

A: Vermont is the only state that has not passed such a law. Forty-nine other states did not think having such a law would be redundant or a solution looking for a problem.

In addition, relying simply on the federal law requires reliance on federal law enforcement and prosecutors. Enacting this bill would reduce this reliance, placing additional law enforcement and prosecutorial authority with the State. Moreover, protection of persons and property within Vermont is not necessarily a federal function. Rather, that is a core function of the state. Accordingly, passing this law to assist Vermont law enforcement is, in one view, a state’s rights issue. This should be a pleasing result for federalism fans.

Under current law, when a Vermont law enforcement officer encounters a felon in possession, he or she will either formally or informally refer the matter to the ATF or U.S. Attorneys Office. The federal authorities act on only a small portion of these referrals because their limited resources are focused on interstate cases (e.g. drug gangs). Vermont officials often decide not to refer cases because they know federal officials will not pursue certain cases. Furthermore, they often decline to refer the felon in possession offense because it could lead to the disruptive situation of an underlining crime being prosecuted in state court while the federal felon in possession crime is prosecuted in federal court. The bottom line is that many instances of violent felons in possession of firearms are not prosecuted.

In short, it is reasonable to give state law enforcement and prosecutors the tool to keep guns out of criminal’s hands.

Reasonable Restrictions on Firearm Ownership

This past week, House Judiciary spent its time off the floor taking testimony and discussing potential tweaks to S.141, An Act Relating to Possession of Firearms. When the Senate considered this bill earlier in the session, it was one of the most controversial pieces of legislation that the General Assembly had before it. The controversy primarily involved inclusion of a provision requiring universal background checks. The Senate passed out a version of the bill that excluded this provision. Nevertheless, House Judiciary has still heard from a lot of people who are opposed to the bill, which restricts ownership of firearms by violent felons and those who are a danger to themselves or others.

This Slope Isn’t Slippery

One of the arguments that I have heard against the bill is that it simply starts Vermont down a slippery slope toward further curtailment of Second Amendment rights. I don’t buy that argument.

One problem with slippery slope arguments is that they avoid the merits of the issue itself, and focus instead on imagined consequences. In other words, they change the subject. To most, the merits of keeping violent felons from having guns is obvious. But to many, the merits of universal background checks are not so obvious. Each idea should be judged on its own merits, and, indeed each has been. The Senate passed out its gun bill excluding the provision requiring background checks because of its questionable merits.

I’ll give you another example besides gun-related legislation. I have heard the argument that allowing marriage between same-sex couples will only lead to allowing marriages between people and their goats. Well, no. The issue was whether two consenting adults have equal rights to get married. It has nothing to do with goats. Support for reform A does not require support for reform B. Someone who believes that the government shouldn’t discriminate against gay men or women by refusing same-sex marriage, does not have to believe that the right to marry should be extended to a man and his goat.

Similarly, one can be in favor of keeping guns out of the hands of violent felons and those who are a danger to themselves or others, while also believing that background checks impermissibly impinge on the Second Amendment protection for the right to own guns.

I will grant that slippery-slope positions are not self-evidently wrong. If the state restricts gun ownership by violent felons and those who are a danger to themselves or others, maybe legislators will be more willing to consider other restrictions on gun ownership. But the opposite could easily be true. After going through the arduous and controversial process to restrict gun ownership by violent felons and those who are a danger to themselves or others, the legislature will be more reluctant to go through that again any time soon to impose other restrictions on gun ownership or will believe it has reacted appropriately to the problem and does not need to impose further restrictions.

Section-by-section Summary of S.141

Section 1: This section establishes a Vermont criminal offense for possession of a firearm by a person who has been convicted of a violent crime. All 49 other states and the federal government currently find this conduct to be criminal. A violation would be punishable as a two-year misdemeanor.

A violent crime is defined to include the following offenses: (1) those involving a subset of “listed crimes,” which is a legislatively-created list of major offenses; (2) sexual exploitation of children; or (3) selling, dispensing, or trafficking significant amounts of illegal drugs where the amount is so great that the penalty is a 10-year felony. A violent crime also generally includes an offense in another jurisdiction comparable to one on this list if the penalty would prohibit a person from possessing a firearm under federal law. “Firearm” is defined the same way as in the federal law, which excludes antique firearms and muzzle loaders.

Section 2: This section makes it more likely that someone who has relinquished firearms due to a restraining order and failed to pay a storage fee will be notified that the firearms are to be sold. Last year in Act 191 (the Fee Bill), the General Assembly created a procedure for a person who is required to relinquish his or her firearms pursuant to a relief from abuse order to store them with a law enforcement agency, an approved federally licensed firearms dealer, or another person. If the applicable storage fee is not paid then the weapon may be sold after a reasonable effort is made to notify the owner of the sale. Act 191 defined “reasonable effort” to mean providing notice of the sale by first class mail, certified restricted delivery. Section 2 of S.141 amends that definition and provides that reasonable notice means notice as provided for in the Vermont Rules of Civil Procedure. This means that notice must be provided through personal service, and only if that proves impossible can notice be provided by mail or by publication.

Section 3: This section requires the Departments of Public Safety and of Mental Health to report on progress in establishing a Vermont version of the New Hampshire Gun Shop Project, an initiative in New Hampshire to reduce the number of firearms-related suicide deaths by helping gun shop owners avoid providing firearms to suicidal persons.

Sections 4, 5, and 6: These sections deal with reporting the names of some people prohibited by federal law from possessing firearms for mental health reasons to the National Instant Criminal Background Check System (known as NICS). S.141 requires Vermont to join the 38 states that currently do some version of this type of reporting.

Section 4 relates to criminal proceedings and requires that a report be made if a defendant is found not responsible for a crime by reason of insanity or incompetent to stand trial due to a mental illness and is committed to the Department of Mental Health after a determination by the Criminal Division of the Superior Court that the person is a danger to himself or herself or others. Section 6 relates to civil commitment proceedings and requires that a report be made if a defendant is subject to a hospitalization order or non-hospitalization order after the Family Division of the Superior Court determines that the person is a danger to himself or herself or others. The reports to the NICS are confidential and only include information sufficient to identify the person, the reason for the report, and a statement that it is made in accordance with federal law. The person who is the subject of the report is also provided with a copy, which must inform the person that he or she is thereafter prohibited from possessing a firearm. Section 5 is a technical provision that permits these reports to be made without violating state confidentiality laws.

Section 7: Section 7 establishes a process through which a person who has been prohibited from possessing a firearm for mental health reasons can petition the Court to have his or her name taken off the NICS database if he or she is no longer a danger to himself or herself or others. The Court considers the circumstances regarding the petitioner’s case, including his or her mental health and criminal record, character evidence, and statements from known victims.

Section 8: Since the bill is prospective and only applies to court findings of dangerousness made after the effective date, Section 8 provides a mechanism to report the names of those who have been previously found dangerous by a court and for that reason are currently in the custody of the Department of Mental Health when the bill is enacted. Section 8 requires that by October 1, 2015, the Department must report the names of those persons to the Court Administrator, who then reports them to NICS in the same manner as will be done for other proceedings going forward.

Section 9: This section provides that the violent criminals in possession, fee for storage, and New Hampshire Gun Shop Project provisions are effective July 1, 2015, while the provisions related to mental health reporting are effective October 1, 2015.

The Committee will likely be voting on the bill early this coming week.

Education, Water, Infrastructure and More

In the past week, the House debated and passed a major education reform bill (H.361), a water clean-up bill (H.35), and the capital bill (H.492).

I voted yes on the education bill even though, as a school board member, I had some major concerns with aspects of it, particularly the inclusion of a cap on local school spending. In my next article in The Other Paper, which comes out this Thursday, I will be addressing this issue more fully (stay tuned). In the interim, a couple good articles about the cap can be found in VTDigger and the Burlington Free Press. Also, the Vermont School Board Association published an extensive analysis of the bill as passed. And take a look at the write-up of the Vermont League of City and Towns for an alternative view of the bill.

I also voted for the water bill, which was less controversial than the education bill. Its detractors were concerned about impacts to small farms and the funding mechanism for the cleanup, but the concerns could not turn back the momentum that was behind this important bill. The bill would raise $8 million in new revenue, including $2.3 million in fee increases to be paid by farms and others contributing to the pollution entering the State’s waters. It would also add a .2% surcharge on the property transfer tax. H.35 takes a large step on what will be a long journey to clean State waters, including Lake Champlain. For more information, see my prior blog posts about the water bill and this VTDigger article.

Finally, I also voted for the capital bill, which funds State infrastructure projects over the next two years through issuing long-term bonds. Among other priorities, the bill provides $7.6 million dollars over two years to the Vermont Housing Conservation Board, with at least $1.5 million of that amount to be used for statewide water quality improvements in FY16 and another $1 million in FY17. The Committee on Corrections and Institutions, which works on this bill, recognizes that it is essential that the State address the water quality issue before the EPA mandates a solution, which could mean a more expensive and less effective approach to the cleanup of the waters of the State.

The only controversial part of the bill was a provision that a fair wage be provided to Vermonters working on projects that the Department of Buildings and General Services (“BGS”) oversees. Payment of a fair wage, which is referred to as the Davis-Bacon Prevailing Wage after the federal law that established it, is already required when Vermont is paying for part of a project that also includes federal dollars. This new provision addresses all projects undertaken by BGS.
I, along with the rest of the House, spent most of the time over the past two weeks on the House floor taking up the budget and revenue bills last week and the bills discussed above this past week. Still, some work was accomplished in committees.

The House Judiciary Committee continued to take testimony on H.221, relating to criminal justice reform. Although supporting the general concept of seeking to decrease incarceration rates in Vermont, representatives from the Attorney General’s Office, the Court, and the Department of State’s Attorneys and Sheriffs’ Association expressed concerns over some of the ways the bill seeks to accomplish that end. The Vermonters for Criminal Justice Reform, headed by former House Representative Susan Wizowaty, is working with these agencies to offer language that addresses their concerns.

In addition, S.115, relating to expungement, should be on the House floor next week. This bill allows for wiping from the record convictions that were based on conduct that has been decriminalized, such as convictions for possession of marijuana in an amount that is no longer criminal. House Judiciary added a section to the bill that provides an alternative avenue for expungement of crimes committed by an individual who was 25 years old or younger at the time of the qualifying offense. Under this provision a person can petition for expungement 5 years (as opposed to 10 to 20 years) after satisfying the terms and conditions of his or her conviction and successfully completing a term of public service programming as approved by the Community Justice Network. In addition, the individual has to have paid any restitution order of the Court and cannot have been convicted of a later crime. The Court also must find that the expungement serves the interest of justice. This new language would help reduce the collateral consequences of conviction, which is one of the aims of H.221 discussed above.

In the coming week, Judiciary will be focusing on S.141, relating to possession of firearms, which just passed the Senate. After a thorough walk-through from Legislative Council Counsel, Judiciary started taking testimony during breaks from the floor over the past week. The bill would restrict gun ownership for violent felons and individuals with certain mental illnesses who are a danger to themselves and others. It also provides a procedure for individuals who had suffered a mental illness to regain the right to gun ownership. I have already been receiving many emails that weigh in on this bill.