GOAL Accused of Untruthful Rhetoric Concerning Gun Licensing Bill (ERPO)
Since the House and Senate passed the latest gun licensing bill, also known as ERPO or Red Flag bills, we have been accused by the bill supporters of spreading untruthful rhetoric about what the bill does. We have also been accused of being unwilling to work with the legislature to craft a workable bill. These opinions are simply not based on the facts.
GOAL always wants to make sure that our members are getting factual information regarding the issues at hand. It is very important that we only use factual information so that when our members are engaging legislators, or others, they have the ability to speak intelligently on the matters at hand.
Despite the backlash from the bills supporters, GOAL’s concerns on due process, property rights, legal representation and lack of mental health assistance still stand. Here are some factual concerns that we have put together for our members to set the record straight. Also listed are a great number of changes to the bill that GOAL offered to address many of our concerns.
FACT: This newly proposed system can only be used on gun owners. If someone believes that a person may be an extreme danger to our children or a potential suicide risk, but they do not possess a license or a gun, this system cannot be utilized. Its strict purpose is to take the gun, not provide help.
FACT: If an “emergency” 10-day order is filed against an accused person, they have no right to appear before the judge with legal counsel until after the order is issued. This is because the accused won’t even be aware of what has transpired until law enforcement shows up at their door to confiscate their property. The defendant only gets a hearing under the emergency order after the order has been enforced.
FACT: Even in the case of an “emergency” order being issued and then being lifted after a hearing, the accused will forever have to state on license applications that their license had been suspended. Then they will have to explain to the licensing authority why they were considered a potential “extreme” public safety risk.
FACT: Citizens who are accused of being an extreme risk are not allowed a court appointed attorney if they cannot afford one. Because these hearings take place as a civil court proceeding, we are told that court appointed legal assistance is never available. The legislature could have changed that, but chose not to.
FACT: Because the appeals process from the original bill was removed, a defendant can only use the existing appellate court process. Even if the accused can afford an attorney these costs can exceed $10,000. If the accused cannot afford an attorney, the appeals process can be virtually impossible.
FACT: The version passed by the House actually mandated that the accused relinquish “ownership”, not just possession, of their property in order to seek an appeal. This was later fixed in the Senate version.
FACT: If the accused cannot make the scheduled hearing for any reason, and if the judge believes the evidence being placed before them by the accuser, the order is “automatically” issued for up to a year.
FACT: The people who can file an order against someone are very broad. This is caused by the lengthy definition of “family or household member”. It is further broadened by the use of “is or was” applied to that definition.
FACT: It is not clear in the bill’s language whether a person is allowed to know or face their accuser. Nor is it clear that they are allowed access to the evidence used against them. We are told that this is already covered in normal court procedures, but when we tried to amend the bill to make that clear, it was rejected.
FACT: It is more likely than not that there is nothing temporary about an ERPO order. With discretionary licensing alive and well in the Commonwealth, is there any belief that once a person has been issued one of these orders that they are ever going to get their rights restored? A senate amendment actually verified that the licensing authorities discretion still exists even if the court denies or lifts an order.
FACT: Even if after an emergency 10-day order the judge decides that there is not enough evidence to place a further order, the accused may not be able to get their property returned. Because the bill only allows the property to be stored with a “licensed dealer”, the guns will have to be entered into their books. If the property consists of handguns that are not on the “approved” roster and meet the Attorney General’s regulations (940 CMR 16:00) they cannot be legally transferred back to the owner. Further, if any of the guns fall under the newly broadened Attorney General’s definition of “assault weapon”, they cannot be legally transferred back as well. We attempted to address this through an amendment, but it was rejected.
FACT: Despite the claims of the bill’s supporters that the state budget has appropriated large amounts of funding for mental health matters, there is nothing in this bill that specifically deals with the people subject to an order. If part of the bill is to identify the next mass murderer, all this bill does is take their legal guns away, hand them a pamphlet on mental health, and then release them on society. If part of the bill is to identify people who may be suicidal, all this bill does is take their legal guns away, hand them a pamphlet on mental health, and then send them home. In the Commonwealth, 93% of women and 72% of men who commit suicide don’t use a gun.
REJECTED PROPOSALS from GOAL
The following rejected proposals are from GOAL’s efforts to craft a bill that would actually create a comprehensive and compassionate bill that not only protected civil rights, it would also have addressed suicide prevention and sever mental health crisis management.
Rejected – Establishing a Friends and Family Suicide Prevention Hotline – this would include a web resource and text capability to ensure that people are able to access much needed information.
Rejected – The hotline would have been staffed by people who are trained in suicide prevention, intervention, and mental health crisis management. Additionally they would have been trained on the legal programs and systems available in MA.
Rejected – Hotline staff would have offered advice on how to conduct a thorough home sweep for materials or items that could be a risk to people in temporary crisis. This would include narcotics, RX medications, alcohol, poisons, etc.
Rejected – The hotline would have provided information on what means currently exist for friends and family to successfully intervene in a temporary mental health crisis.
Rejected – Directing the Department of Public Health to develop mental health wellness follow up programs.
Rejected – Provide Judges the ability to mandate secure treatment for people with severe mental health issues that have been determined to pose an “extreme” risk to others. This would prevent them from having access to our children and they may get the help they so desperately need.
Rejected – Enables a judge to reduce the likelihood that a person who is extremely dangerous due to severe mentally illness cannot cause harm using by other means by taking action to revoke, or at least recommend, a wide range of State issued licenses or permits, i.e. a CDL license, license to practice medicine, firearms license, etc.
Rejected – Establishing a commission to conduct a comprehensive study on suicide prevention and mental health crisis management needs in the Commonwealth now and in the future.
Rejected – Examine and report on all current and proposed suicide prevention and mental health crisis management resources available in the Commonwealth.
Rejected – Conduct a review of present and projected future needs for emergency outpatient, inpatient, and long-term care needs for those with mental health issues.
Rejected – Report on the current statistics regarding suicide and the means of suicide as established by the Injury Surveillance Program under the Massachusetts Department of Public Health.
Rejected – Establish a fund suitable to accept donations from charitable organizations to assist the state in mental health services and suicide prevention.
Rejected – The rightful return of property that would have protected those having their property stored to have it returned to them even if they were not on the “approved” lists.
Rejected – Protecting owners from incurring fees from storage facilities when property was being held without the owner’s consent. They have the right to store their property at a facility of their choosing.
Rejected – Providing mental health counseling once a protection order has been issued.
Rejected – Raising the standard of evidence to “clear and convincing”.
Rejected – Increasing the penalties for false accusation that would include placing a harassment order against the false accuser.
Rejected – Preventing an order being placed on the accused automatically simply because they could not appear at the only hearing.
Rejected – Raising the standard of evidence for an “emergency” 10-day order to “clear and convincing” and only if the evidence showed the accused to be an extreme danger to others.
Rejected – Clarifying by specific section of law who could temporarily store property.
Rejected – Preventing other means of harm by extremely dangerous people by restricting their ability to possess things like dangerous chemicals or rental trucks.
Rejected – Allowing courts to commit extremely dangerous people for longer periods of time if they have a history of being committed due to severe mental illness.
Rejected – Placing a restriction on dangerous individuals who have been committed against their will from entering onto school property.
Rejected – Narrowly defining “Family or Household Members” to only those with a current relationship.
Rejected – Providing legal counsel for financially poor that have been accused.
Rejected – Mandating the court identify whether the accuser has a history of harassing the accused or has a history of mental illness themselves.
Rejected – If the court issues an “emergency” order the accused must be notified within 24 hours and be allowed a hearing within 2 days.
Rejected – Mandating the courts actually have to consult with a licensed psychiatrist who specializes in suicide intervention and severe mental illness crisis management.
Rejected – Nothing in the new law shall be deemed to prevent the respondent from being notified as to the identity of the petitioner and the evidence being presented against them.
Rejected – That an accuser could only file a petition if they have direct knowledge of danger, not second hand hearsay.