Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
by: James Stoker
Our failed mental health process and the people it’s hurting…
I’m going to discuss a touchy subject for a lot of citizens when it comes to gun rights and right vs. wrong. A common push for the people-control (gun control) advocates is to fight for red flag laws or what Pennsylvania calls extreme risk protection orders. These orders are a clear violation of our Article I, Section 21 rights in Pennsylvania, violating due process. (For a detailed discussion on why, please click this link for our position paper on the topic).
We already have a robust system in place that was built to “protect” individuals in crisis and those around them. In fact, I’m writing this piece to identify that it already goes too far, and is in need of a change in how it is being applied in the Commonwealth.
Currently, Title 18, Section 6105 Persons not to possess, use, manufacture, control, sell, or transfer firearms subsection (C)(4) states “A person who has been adjudicated as an incompetent or who has been involuntarily committed to a mental institution for inpatient care and treatment under section 302, 303 or 304 of the provisions of the act of July 9, 1976 (P.L.817, No.143), known as the Mental Health Procedures Act. This paragraph shall not apply to any proceeding under section 302 of the Mental Health Procedures Act unless the examining physician has issued a certification that inpatient care was necessary or that the person was committable.”
For those not familiar, an Act 302 under the mental health act is an “Involuntary Emergency Examination and Treatment Authorized by a Physician”. This is the course of action for physicians and police officers as a last-ditch effort to get someone mental health care who may be in crisis and a potential danger to themselves or others. Or for family members to petition their county health agencies for a “warrant” to order the evaluation. Many mental health professionals have resources at their fingertips that permit them to go long careers without employing this particular tool, but police officers use them often, dealing with safety concerns for both the patient and the community. It is meant to be a fail-safe to prevent loss of life, and place the patient in the hands of a mental health professional who can (hopefully) accurately assess whether the patient is in need of involuntary care or not.
Within the first two hours of arrival, an on-duty physician who may or may not have specialized training in mental health, is to make an initial call as to whether the patient is in need of involuntary care. This happens quickly, and often amidst the chaos of a busy emergency room. The problem is that under the statute, the moment you are signed in by that professional after that short visit, the Pennsylvania State Police are notified and your right to possess firearms is taken from you. No hearing. No advocate for your rights. No due process.
And that is where we have a problem. Yes, there is a system to allow you to petition the courts to restore your rights after you are released from care, but that means hiring your attorney and paying the price. Once the Act 302 order is signed that’s it. No due process until you pay your attorney to fight back. You lose your rights, and then have to fight to get them back. You would be surprised how often this can happen. Women and men have bad days. We all take hits from life that can cause some to make scary statements, whether the intentions are there or not, and put families at odds over how to cope with the possibility that doing nothing may be worse than doing something. And citizens shouldn’t have to spend tens of thousands restoring rights when no due process occurred in the first place.
Enter my best example of why this is an issue. A young woman buys a firearm to protect herself from an abusive boyfriend. Said boyfriend steals it from her and threatens her. She reports it stolen anyway, feeling an obligation to do the right thing. She buys a second pistol, this one intending to protect her now from the first. Boyfriend comes back one night and breaks in, threatening to kill her with first pistol. Second pistol comes out and a struggle ensues. Boyfriend is killed and both guns seized by law enforcement as evidence. Woman is taken to holding while the investigation occurs, and has a mental breakdown when told she has killed her abuser. Shockingly, that’s often what good people do… struggle with the taking of a life, whether necessary or not. Police exercise caution and use the Act 302 for HER safety. She spends a couple of days in the hospital and recovers, asking to return to her life. Hospital staff attempt to force her to stay, causing an Act 303 hearing to commit her involuntarily beyond the initial 120 hours permitted by the ‘302’.
THIS is where due process occurs. She has an advocate, a hearing officer or judge, and a case is presented for fact finding and a decision is made to release her. She is found NOT to be in need of involuntary care at that time.
She returns to work. A few weeks go by and the boyfriend’s sister finds her at work and assaults her. Puts her in the hospital with a concussion. Threatens to come back and kill her. Woman returns to gun shop and tries to buy a handgun to protect herself against more crime, only to be denied on her background check over the Act 302 emergency examination. She is left defenseless, unable to do anything without finding thousands of dollars and petitioning the court.
It should never be the burden of the citizen of this Commonwealth to prove they have the right to self-defense. If lost as a result of due process, then so be it, we can discuss restoration of rights in another article. But anyone who has ever had something taken by government can tell you that you never want to have to fight to get something back that shouldn’t have been taken away in the first place.
Our legal counsel, Joshua Prince, Esq., has won two cases on Act 302 denials in federal court[i]. The leadership at FOAC Institute believes this is something we should be actively involved in correcting in the Commonwealth. We have been in discussion with legislators, PSP, and legal counsel considering our options on this topic. Stay tuned… we may have another fight on our hands…
[i] https://blog.princelaw.com/wp-content/uploads/2017/12/court-decision-and-order-franklin-53.pdf and https://blog.princelaw.com/wp-content/uploads/2019/08/wilborn-21.pdf
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