Legislative Update, April 18, 2015

Rep. Anne Donahue

Legislative Update

April 18, 2015

 

We remain in a long “calm before the storm” period in the House right now, waiting for return of the “big bills” from the Senate: new taxes; budget; education reforms; water quality. When the conference committees and debates over Senate changes begin, it will signal that we are close to the end of the session.

There are some strictly policy bills moving, however. Likely next week we will debate the proposed changes to our system of child protection, and whether we should continue our experiment with physician-prescription suicide at end-of-life.

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Guns

This week was all about the gun bill debate. There is a strong argument, beyond anything else, that this bill is unnecessary. Once the truly offensive proposal for private sales background checks was removed in the Senate, the two remaining pieces were very narrow, and certainly less objectionable.

Do they do anything of value, apart from achieving an “important first step” (in the words of proponents) towards greater gun control in Vermont? This nose under the camel’s tent was probably the greatest concern for many.

Part one establishes a state misdemeanor crime for something that is already a felony under federal law: possession of a firearm by someone with a prior felony conviction. The bill limited this new misdemeanor crime to prior violent or drug-related felonies.

The argument in support was that the feds aren’t willing to invest time in prosecuting the federal offense when it is solely a possession violation, unrelated to bigger federal crimes.

But if a convicted violent felon is already facing a potential 10-year prison term under federal law, will a Vermont two-year maximum penalty deter illegal gun possession? Unlikely.

Vermont’s law enforcement community wanted it as an added tool for prosecutions when the proof of an underlying crime is weak. Although it is unclear whether this will prove to be a useful tool, it is hard to argue against it, and I did support that separate subpart of the bill, which passed 89-50.

Guns and Mental Illness

It would be quite a stretch to suggest that a person in the midst of a psychotic break retained a Second Amendment right to purchase or possess a gun. No one was in dispute on that issue, and a person with an active mental illness is one of the many classes of persons banned under federal law.

Federal law extends that ban to persons who have ever been court-ordered to receive treatment, no matter how many years in the past. If states send the names in to the feds, they are listed on the National Instant Criminal Background Check System. I emphasize “criminal” because the majority of these folks have never even been accused of a crime.

This ban plays into enhancing stigma, because it is contrary to fact that persons with a mental illness present no statistically greater risk of violence – despite broad public perception. According to research, a tiny sub-group of persons have an increased risk at the time they are hospitalized and for a short time after release.

The only in-depth study of the effect of listing individuals on the database found a less than one percent possible reduction of violent crime. The study noted that when violence does occur, it is often when a person has never been under any court order because the illness had never been identified or treated.

About a quarter of states, like Vermont, do not currently require names to be sent in. The rest do, but also have what is called under federal law a “Relief from Disabilities” process. A person can regain rights once they are no longer a danger as a result of symptoms of the illness.

Interestingly, a U.S. Court of Appeals ruled last December that the permanent federal ban was unconstitutional if applied to persons in a state where there is no such process available; the ban flies in the face of what we know about recovery from mental illness, and is thus blatantly and unlawfully discriminatory.

The bill before us would require the names of those under court orders to be sent to the database, but also created a “Relief from Disabilities” process. So a key issue was, did it create a process that was legitimate, or something solely “on paper” that would continue to equate to a lifetime ban?

The second critical issue was whether any potential benefit of sending names in (that less-than-one-percent chance of benefit) was offset by the significant risk that the fear of losing gun rights would deter individuals from seeking mental health help.

A study just last fall commissioned by Vermont’s Department of Mental Health reported that this was a very valid fear. Even though the law would not actually affect anyone who voluntarily seeks help, perception is often stronger than reality.

Vermont has a very significant gun violence problem in one specific way. We have a very high and increasing rate of suicide, and currently the highest rate of increase is among men between the ages of 35 and 60. Of all gun deaths in Vermont 90 percent are from suicide, not accident or criminal violence. It is a public health crisis that has been largely unrecognized… until it became argued as a justification for this bill.

The reality, however, is that these deaths are not occurring among persons who were ever under court-ordered treatment. They are occurring because the gun-owning community is part of a strong culture that believes that men should “tough it out” if they are depressed; that continues to identify mental illness as a weakness; and that is far less likely to seek out help.

These conclusions are from the same Vermont study that recognized that mandatory reporting of names could further increase the fear of seeking help. Might we save a life at some point because someone is unable to purchase a gun because they were once committed to involuntary treatment and they are now on the database?  Perhaps.

Will we lose lives because individuals are less likely to seek help if they perceive their gun rights will be at risk, and since they are persons who have never been committed, plus already own a gun, wouldn’t be attempting (or blocked from) a purchase, regardless? More probably.

It was a key reason I could not support the bill.

Beyond that, the Relief from Disabilities process it establishes is problematic in many ways. A person can apply after the state has determined that they no longer meet the criteria for a continuation of the outpatient commitment order because the state can no longer meet the test to show they are a “danger to self or others.” (The test is met even if the person is not currently a danger, but might become a danger in the near future if they discontinue treatment.)

Although at that point the person can petition a court to have Second Amendment rights restored, they bear the difficult and costly burden of proving that they are well, even though the state has already determined that the treatment order is no longer necessary.

Coincidentally, just last week the Vermont Supreme Court ruled that the state cannot continue to take away a person’s rights if it can no longer show a risk of dangerousness. That case addressed the right to be free of government intrusion on personal autonomy.

The analogy to continuing to take away other constitutional rights without the state having the burden of showing dangerousness is clear.

I need to reference a prejudice of my own. I started this session worrying that the mental illness section of this bill would sail through, because targeting those with mental illness would be the “low-hanging fruit” that was easy to support. Indeed, gun control supporters portrayed it exactly that way, in disregard of research and fact, and playing on fear.

Most of all, I thought the gun-owning community – those tough, insensitive guys – would be ready to throw that crumb to the advocates.

I was wrong. I was deeply moved by how much these folks truly understood the issues at stake and the false assumptions that are based on stigma. Discrimination against those like me who have struggled with mental illness is still prevalent in society. They recognized that, and it became a fundamental part of their objections to the bill.

In one heart-to-heart with a member of the Vermont Federation of Sportsmen’s Clubs, when I expressed my gratitude, the member answered, “Of course we get it. Many of our members are Veterans who have struggled with PTSD.”

I owe an apology to them for the assumptions I made.

When this part of the bill was added to the felony-possession section, it lost 10 additional votes, but still passed 79-60 on the first day’s vote. The final vote was 80-62.

The Gun Shop Project

There is one good thing that is coming out of this bill, and that is the awareness of the New Hampshire Gun Shop Project, and the soon-to-begin Vermont Gun Shop Project.

It is the one thing that can truly make a difference in our suicide crisis. Its genesis was a gun shop owner in New Hampshire who was distraught about the death of a person who bought a gun from him. He teamed up with gun owner groups and suicide prevention experts to develop a program of education and resource materials.

More than half the gun shops in New Hampshire now participate. It is, most importantly, a program about empowering the gun-owning community to support members who may be in crisis, as part of a caring community of friends.

I shared information about this project earlier this year with Chris Bradley of Northfield, the current president of the Federation, who enthusiastically endorsed it – and reminded me that safety is one of the fundamental objectives of the work of the Federation.

It was Chris who first testified in the Senate to explain the program, and it ended up becoming a part of the bill. It didn’t need legislation; one of its strengths is that it is a self-generated, voluntary-participation project.

But it doesn’t hurt that our Department of Mental Health will be charged with helping to gather interested parties together to coordinate its implementation in Vermont. So I am grateful that the Federation and other Vermont gun rights groups were so quick to volunteer a leadership role, and I made a little speech to that effect on the House floor Friday.

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Please keep sending me your thoughts and concerns – they are important to me. Contact me any time via messages at the state house (828-2228), home (485-6431) or by email: counterp@tds.net. You can read my past updates on my blog site, www.representativeannedonahue.blogspot.com.