Carney-backed legislation looks to keep guns away from those with mental illness

Gov. John Carney is backing legislation that would allow a judge to bar someone from owning a gun if a mental health worker tells police the person is dangerous to themselves or others.

The bill, which legislators introduced Tuesday, will be named the Beau Biden Gun Violence Prevention Act and mirror a failed legislation that was proposed by the late former attorney general, according to the governor's office.

"I think it's our moral obligation to support this piece of legislation," he said before calling on the work of Biden that propelled the bill forward originally. "We should pass this legislation in memory of our good friend and former colleague, former Attorney General Beau Biden."

The Carney-backed bill, which also garnered the support of the state Department of Health and Social Services, would require mental health providers to call police if they suspect a patient presents a danger to themselves or others, according to the governor's office. After a police investigation, the state Department of Justice could petition a judge to bar the patient from purchasing firearms or require them to relinquish any guns they already own.

POLITICS:Delaware bail reform bill slated for final vote Tuesday

EDUCATION:Civil rights groups sue Delaware over education funding for low-income, disadvantaged students

The legislation, introduced by Rep. David Bentz, D-Newark, also will attempt to expand the list of people who are prohibited from owning a gun because of mental illness. Under current state law, only people involuntarily committed to a mental institution are banned from owning guns. The bill would add people found not guilty of a crime by reason of insanity or incompetent to stand trial because of a mental illness.

Those provisions are nearly identical to legislation Biden proposed in 2013 following the Newtown, Connecticut, shooting that left 20 children and six adults dead at Sandy Hook Elementary School.

Calls for better gun control and reform immediately followed, as they often do after mass casualty shootings — incidents that have only continued since 2013, though Delaware has not recorded any. 

Patty Dailey Lewis, executive director of the Beau Biden Foundation and a prosecutor who worked on this legislation with Biden, called Delaware fortunate to have not seen any of these mass tragedies. But, she added, if the state can do anything to protect people from hurting themselves or others, she couldn't imagine why legislators wouldn't step up and support it.

"As an attorney, I believe in the Constitution," she said, "but I imagine the framers didn't believe every person who can draw a breath should have a gun."

The Biden-backed bill was passed by the House by a vote of 40-1 but failed in the Senate amid protests from gun rights advocates who worried the measure would be applied in inappropriate cases.

“The idea that we as a society need to do a lot more to keep guns away from those with dangerous mental illnesses has broad public support, and my office and I are working hard to secure the needed support in the Senate to have the bill pass in 2014,” Biden said in a written statement after the bill was defeated. “This bill will save lives.”

Some supporters Tuesday, like state health Secretary Kara Odom Walker and Dailey Lewis, also pointed to the high rate of suicide involving guns – lives that could be saved with the passing of this bill. Last year, 125 Delawareans died as a result of suicide, Walker said. More than half of those were committed with firearms.

In hindsight of the bill's original failure, Bentz said representatives did not do enough in 2013 to ensure members of the Senate fully understood the provisions of the bill. At the time, similar-minded senators and representatives split votes on issues within the legislation on which they would typically align.

He said he believes this second push will come to fruition because more care has been taken to answer those questions about due process and Second Amendment rights in the time since the failure of the bill in 2013. 

"There were a lot of questions that arose and I believe that those people got the answers," Bentz added.

Five years later, proponents of Bentz's bill Tuesday were making the same arguments as Biden back in 2013.

"It's unconscionable for us to think that in a time when a person's not thinking clearly that we wouldn't do everything we could to protect them from harming themselves and others," said former Rep. Michael Barbieri, who represented the Delaware Coalition Against Gun Violence Tuesday but previously co-sponsored the bill in 2013. "We have to do that and this bill allows us to do that."

The legislation, which also garnered support from the state Department of Homeland Security and Delaware State Police, will compete with a similar bill that was introduced in December and now awaits a hearing before a House committee.

That measure, House Bill 285, is backed by State Rep. Andria Bennett, D-Dover, and Sen. Anthony Delcollo, R-Elsmere, along with a bipartisan group of co-sponsors and the Delaware State Sportsmans' Association, which helped to draft the bill.

"Both the [National Rifle Association] and the state sportsmans' association are in agreement that people with mental illness do not need to have firearms," said Jeff Hague, president of the DSSA. "But it has to help the problem and not disenfranchise law-abiding citizens without due process."

Hague said a draft of the Carney-backed bill circulated last week does not provide enough protection to ensure those stripped of their guns will be provided a fair hearing.

"There could be cases where police or the attorney general think someone has a mental illness but they don't," he said. "Under this bill, that person may not have a right to defend themselves. That's not the way the American system is supposed to work."

The Bentz bill gives someone investigated under the statute the right to present testimony and evidence in any proceedings about their right to own weapons, but does not specifically require such a hearing to be held.

HB 285 does require a hearing and goes a step further than the competing bill by also guaranteeing someone the right to cross-examine witnesses. That bill also would set a 60-day limit on a ban order and require an additional hearing if the DOJ seeks to have it extended.

 "The Bentz bill goes part way, but not far enough," Hague said. "Show me something that works and I'll support it."

Supporters of the Bentz bill say it is House Bill 285 that is deficient.

STATE NEWS:Delaware hospitals, EMS cope with IV bag shortages

GUN VIOLENCE:Wilmington’s deadliest year: Mayor withholds 'serious concern' until plan takes hold

They point to a provision that would extend the state-mandated duration of involuntary detention in a mental health facility from 24 to 48 hours. That, opponents say, would violate the spirit of a settlement the state reached in 2016 with the American Civil Liberties Union and Community Legal Aid Society over solitary confinement and mental health care.

Those who support Bentz's bill also claim House Bill 285 includes a loophole that would exclude anyone involuntarily committed to outpatient treatment for mental illness for a ban on owning firearms.

It remains to be seen whether state legislators will attempt to merge the two bills or advance one over the other.

The competing legislation is among a handful of bills that have been introduced in the General Assembly aimed at curtailing gun violence.

Democrats in the Legislature introduced a bill last month that aims to outlaw so-called "bump stocks," devices that allow semi-automatic weapons to fire at a rate that rivals their fully automatic counterparts.

A bill introduced by Bentz in June also would allow the courts to bar someone from owning a firearm for up to a year if the police or a family member requests a "lethal violence" protection order.

The DSSA is opposing both measures. 

Contact Brittany Horn at (302) 324-2771 or bhorn@delawareonline.com. Follow her on Twitter at @brittanyhorn. Contact reporter Scott Goss at (302) 324-2281, sgoss@delawareonline.com or on Twitter @ScottGossDel.