SPONSOR:

Rep. Barbieri & Rep. Hudson & Sen. Sokola

 

Reps. Bolden, Longhurst, Mitchell, Schwartzkopf, Scott; Sen. Henry

HOUSE OF REPRESENTATIVES

147th GENERAL ASSEMBLY

HOUSE BILL NO. 88

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.


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:


Section 1.  Amend §1448, Title 11 of the Delaware Code by making insertions as shown by underlining and deletions as shown by strike through as follows:

§1448. Possession and purchase of deadly weapons by persons prohibited; penalties.

(a) Except as otherwise provided herein, the following persons are prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm within the State:

(1) Any person having been convicted in this State or elsewhere of a felony or a crime of violence involving physical injury to another, whether or not armed with or having in possession any weapon during the commission of such felony or crime of violence;

(2) Any person who:

(i) has ever has ever been committed for a mental disorder to any hospital, or mental institution or sanitarium, unless such person can demonstrate that he or she is no longer prohibited from possessing a firearm pursuant to §1448A of this title; or

(ii) has been found not guilty by reason of insanity, or guilty but mentally ill, including any juvenile who has been found not guilty by reason of insanity or guilty but mentally ill, of a crime of violence unless such person can demonstrate that he or she is no longer prohibited from possessing a firearm pursuant to §1448A of this title; or

(iii) has been found mentally incompetent to stand trial for a crime of violence, including any juvenile who has been found mentally incompetent to stand trial, unless there has been a subsequent finding that the person has become competent, or unless such person can demonstrate that he or she is no longer prohibited from possessing a firearm pursuant to §1448A of this title; or

(iv) has been the subject of an order of relinquishment issued by the Superior Court pursuant to Section 1448B of this Title.

(3) Any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug or central nervous system depressant or stimulant as those terms were defined prior to the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16;

(4) Any person who, as a juvenile, has been adjudicated as delinquent for conduct which, if committed by an adult, would constitute a felony, unless and until that person has reached their 25th birthday;

(5) Any juvenile, if said deadly weapon is a handgun, unless said juvenile possesses said handgun for the purpose of engaging in lawful hunting, instruction, sporting or recreational activity while under the direct or indirect supervision of an adult. For the purpose of this subsection, a handgun shall be defined as any pistol, revolver or other firearm designed to be readily capable of being fired when held in 1 hand;

(6) Any person who is subject to a Family Court protection from abuse order (other than an ex parte order), but only for so long as that order remains in effect or is not vacated or otherwise terminated, except that this paragraph shall not apply to a contested order issued solely upon §1041(1)d., e., or h. of Title 10, or any combination thereof;

(7) Any person who has been convicted in any court of any misdemeanor crime of domestic violence. For purposes of this paragraph, the term "misdemeanor crime of domestic violence" means any misdemeanor offense that:

a. Was committed by a member of the victim's family, as "family" is defined in §901(12) of Title 10 (regardless, however, of the state of residence of the parties); by a former spouse of the victim; by a person who co-habitated with the victim at the time of the offense; or by a person with a child in common with the victim; and

b. Is an offense as defined under §601, §602, §603, §611, §614, §621, §625, §628A, §763, §765, §766, §767, §781, §785 or §791 of this title, or any similar offense when committed or prosecuted in another jurisdiction; or

(8) Any person who, knowing that he or she is the defendant or co-defendant in any criminal case in which that person is alleged to have committed any felony under the laws of this State, the United States or any other state or territory of the United States, becomes a fugitive from justice by failing to appear for any scheduled court proceeding pertaining to such felony for which proper notice was provided or attempted. It is no defense to a prosecution under this paragraph that the person did not receive notice of the scheduled court proceeding.

(9) Any person, if the deadly weapon is a semi-automatic or automatic firearm, or a handgun, who, at the same time, possesses a controlled substance in violation of §4763, or §4764 of Title 16.

(10) Except for "antique firearms", any validly seized deadly weapons or ammunition from a person prohibited as a result of a felony conviction under Delaware law, federal law or the laws of any other state, or as otherwise prohibited under this subsection (a) of this section may be disposed of by the law enforcement agency holding the weapon or ammunition, pursuant to §2311 of this title.

a. "Antique firearm" means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily restored to a firing condition.

b. A person prohibited under this section has the burden of proving that the subject firearm is an antique firearm as defined in paragraph (a)(10)a. of this section subject to an exemption under this section and §2311 of this title.

(b) Any prohibited person as set forth in subsection (a) of this section who knowingly possesses, purchases, owns or controls a deadly weapon or ammunition for a firearm while so prohibited shall be guilty of possession of a deadly weapon or ammunition for a firearm by a person prohibited.

(c) Possession of a deadly weapon by a person prohibited is a class F felony, unless said deadly weapon is a firearm or ammunition for a firearm, and the violation is 1 of paragraphs (a)(1) through (a)(8) of this section, in which case it is a class D felony. As used herein, the word "ammunition" shall mean 1 or more rounds of fixed ammunition designed for use in and capable of being fired from a pistol, revolver, shotgun or rifle but shall not mean inert rounds or expended shells, hulls or casings.

(d) Any person who is a prohibited person solely as the result of a conviction for an offense which is not a felony shall not be prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm if 5 years have elapsed from the date of conviction.

(e)(1) Notwithstanding any provision of this section or Code to the contrary, any person who is a prohibited person as described in this section and who knowingly possesses, purchases, owns or controls a firearm or destructive weapon while so prohibited shall receive a minimum sentence of:

a. One year at Level V, if the person has previously been convicted of a violent felony;

b. Three years at Level V, if the person does so within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or

c. Five years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony.

(2) Any person who is a prohibited person as described in this section because of a conviction for a violent felony and who, while in possession or control of a firearm in violation of this section, negligently causes serious physical injury to or the death of another person through the use of such firearm, shall be guilty of a class B felony and shall receive a minimum sentence of:

a. Four years at Level V; or

b. Six years at Level V, if the person causes such injury or death within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or

c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony.

d. Nothing in this paragraph shall be deemed to be a related or included offense of any other provision of this Code. Nothing in this paragraph shall be deemed to preclude prosecution or sentencing under any other provision of this Code nor shall this paragraph be deemed to repeal any other provision of this Code.

(3) Any sentence imposed pursuant to this subsection shall not be subject to the provisions of §4215 of this title. For the purposes of this subsection, "violent felony" means any felony so designated by §4201(c) of this title, or any offense set forth under the laws of the United States, any other state or any territory of the United States which is the same as or equivalent to any of the offenses designated as a violent felony by §4201(c) of this title.

(4) Any sentence imposed for a violation of this subsection shall not be subject to suspension and no person convicted for a violation of this subsection shall be eligible for good time, parole or probation during the period of the sentence imposed.

(f)(1) Upon conviction, any person who is a prohibited person as described in paragraph (a)(5) of this section and who is 14 years of age or older shall, for a first offense, receive a minimum sentence of 6 months of Level V incarceration, and shall receive a minimum sentence of 1 year of Level V incarceration for a second and subsequent offense, which shall not be subject to suspension. Any sentence imposed pursuant to this subsection shall not be subject to §4205(b) and 4215 of this title.

(2) The penalties prescribed by this subsection and subsection (g) of this section shall be imposed regardless of whether or not the juvenile is determined to be amenable to the rehabilitative process of the Family Court pursuant to 1010(c) of Title 10 or any successor statute.

(g) In addition to the penalties set forth in subsection (f) of this section herein, a person who is a prohibited person as described in paragraph (a)(5) of this section and who is 14 years of age or older shall, upon conviction of a first offense, be required to view a film and/or slide presentation depicting the damage and destruction inflicted upon the human body by a projectile fired from a gun, and shall be required to meet with, separately or as part of a group, a victim of a violent crime, or with the family of a deceased victim of a violent crime. The Division of Youth Rehabilitative Service, with the cooperation of the Office of the Chief Medical Examiner and the Violent Crimes Compensation Board, shall be responsible for the implementation of this subsection.

(h) Any person prohibited by this section may also be subject to firearm and ammunition relinquishment as provided by §1448B of this Title.

Section 2. Amend Title 11 of the Delaware Code by adding a new 1448B as shown by underlining as follows:

§1448B. Civil Procedure to Relinquish Firearms or Ammunition

(a)      Any person who from the enactment of this section is:

(1)prohibited from the possession and purchase of dangerous weapons under 1448 of this Title, or

(2)reported to a law enforcement agency by a mental health professional, hospital, institution, or agency pursuant to 5402 of Title 16, shall be investigated by the appropriate law enforcement agency to determine if firearms, as defined in §22 of this Title, and related ammunition, as defined in §1448(c) of this Title, should be relinquished. If such agency determines that firearms/ammunition should be relinquished, the law enforcement agency shall refer the report to the Department of Justice.The Department of Justice may, upon review of such report, request from the Superior Court an order prohibiting the purchase, ownership and possession of a deadly weapon.

(b) The Department shall have the burden of proving by a preponderance of the evidence that the respondent is dangerous to others or self as defined in Section 5122 of Title 16.The respondent shall have the right to present evidence and be heard in any such proceedings.In the event that the Court makes such a finding, the Court shall issue an order to relinquish respondent's firearms or ammunition under this section, and such order shall be reported to the Delaware State Bureau of Investigation for purposes of establishing that such person is a person prohibited from the possession or purchase of deadly weapons pursuant to §1448 of Title 11.

(c) The Court may include in any order that such person shall relinquish to a law enforcement officer any firearms or ammunition owned, possessed, or controlled by such person.Alternatively, the Court may, in its discretion, allow such person to voluntarily relinquish to a law enforcement officer any firearms or ammunition owned, possessed, or controlled by such person.The Court may also, in its discretion, direct any law-enforcement agency to forthwith search for and seize firearms and ammunition of such person prohibited, upon a showing by the petitioner that the person has ownership, control or possession of a firearm or ammunition.

(d) Any person subject to an order of the Court pursuant to this Subchapter may petition the Court for an order to return firearms or ammunition by procedures established by §1448A of this Title.

(e) If the basis for relinquishment in 1448B(b) is removed by the Court, any firearms and ammunition taken from the person shall be restored in a timely fashion without the requirement of §1448A.

(f) Any party in interest aggrieved by a decision of the Courts under this Subchapter may appeal such decision to Supreme Court.

(g) The Delaware State Police and the Department of Justice shall work with local law enforcement agencies and the Department of Health and Social Services and its Division of Substance Abuse and Mental Health to develop appropriate internal policies and regulations to ensure that personnel who process such procedures under this section are trained on appropriate mental health risk assessment procedures and also are trained to look for histories of violence.

Section 3. Amend §5402, Title 16 of the Delaware Code by making insertions as shown by underlining and deletions as shown by strike through as follows:

(a) Except as provided in subsection (d) of this section, n No cause of action shall lie against a mental health services provider, institution, agency or hospital, nor shall legal liability be imposed, for inability to prevent harm to person or property caused by a patient unless:

(1) The patient has communicated to the mental health services provider an explicit and imminent threat to kill or seriously injure a clearly identified victim or victims, or to commit a specific violent act or to destroy property under circumstances which could easily lead to serious personal injury or death, and the patient has an apparent intent and ability to carry out the threat; and

(2) The mental health services provider fails to take the precautions specified in subsection (b) of this section in an attempt to prevent the threatened harm.

(b) Any duty owed by a mental health services provider, institution, agency or hospital, to take reasonable precautions to prevent harm threatened by a patient is discharged, as a matter of law, if the mental health services provider, in a timely manner:

(1) Notifies a law enforcement agency near where the potential victim resides, or notifies a law enforcement agency near where the patient resides, and communicates the threat of death or serious bodily injury to the clearly identified victim or victims; or

(2) Arranges for the patient's immediate voluntary or involuntary hospitalization in an inpatient or outpatient program.

(c) Whenever a patient has explicitly threatened to cause serious harm to a person or property, or a mental health services provider otherwise concludes that the patient is likely to do so or is dangerous to others or self, as defined in 16 Del. C. 5122 and the mental health services provider, for the purpose of reducing the risk of harm, discloses any confidential communication made by or relating to the patient, no cause of action, either criminal or civil, shall lie against the mental health services provider for making such disclosure.

(d) Whenever a patient within the custodial responsibility of a hospital or other facility has made or makes threats of the kind dealt with in subsection (a) of this section, the mental health services provider and institution, agency or hospital shall, prior to such patient's discharge, consider and evaluate previously made threats made by such patient. Under such circumstances, the mental health services provider may consider it prudent to inform appropriate law enforcement agencies or the previously threatened party as a measure of precaution. Subsections (a) and (c) of this section shall also apply to the hospital or facility.

Section 4.Effective Date.This Act shall take effect 90 days after its enactment into law.

Section 5.The Department of Justice, the Courts, the Delaware State Police, DELJIS, the Delaware State Bureau of Identification, the Department of Health and Social Services and any other necessary agency as may be determined by the Governor, may develop appropriate regulations to carry out the purposes of this Act.


SYNOPSIS

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.Unlike other states, 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 §1448B of this Title, to relinquish the person's firearms or ammunition and to take appropriate investigative action.

Pursuant to  1448B, 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  1448B 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.

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