Kaine’s Faulty Fix
By Greg L | 1 May 2007 | Virginia Politics, Crime | 11 Comments
Although it would seem that every political pundit has lavished high praise on Governor Kaine’s Executive Order Number Fifty which seeks to close the “loophole” which previously allowed persons who were ordered to receive outpatient mental health services to have the right to obtain a firearm, I’m not entirely sure that this emotionally-inspired rush to do something in the wake of the Virginia Tech outrage is anything to be wildly happy about. We’ve ridden the wave of emotion before and tried establish law or policy to address an important issue, and the results have often been problematic. It’s possible that this is another example of how not to govern.
I think most of us agree that there is a problem that needs to be addressed, in that there’s a demonstrated potential for persons who shouldn’t have firearms to get them as long as their court-ordered treatment is delivered on an outpatient basis. Instead of asking the question of why the courts would opt to allow outpatient mental health services for those deemed a danger to themselves or the community in the first place, the rush has been to declare a whole new group of people ineligible to exercise their constitutional rights. Firearms are clearly not the only means of delivering carnage on the innocent, so while we may have addressed guns, those same dangerous and mentally ill persons are still free to select any other means of destruction which remains available to them. It would be far more productive to ensure that those who are determined by a court of law to be a danger to themselves or others are required to be treated on an inpatient basis, where they can be properly supervised until they have recovered from their illness.
So why didn’t the Governor and the Attorney General actually address the real problem here? It’s too difficult to revamp the commitment procedures through executive order, and far easier to change the meaning of words in the law by and twist them into something that the legislature had not intended to be the law. We’re not likely to see legislators stand up and defend the law they passed in the current political climate, as few are likely to have the courage to stand up and defend the rights of those who have received involuntary mental health treatment in the past given that many think all of these people are just like Seung-Hui Cho. They’re going to pass the buck off to the courts, which will almost certainly have to deal with this.
Why would the courts be expected to rule on a challenge to this order? Because everyone who has ever received involuntary outpatient mental health services has just had their constitutional rights revoked. This order is retroactive, and the State Police have been directed to gather all records of involuntary outpatient treatment and forward that information on to the Central Criminal Records Exchange and to the federal database used by the National Instant Check System. Thousands of people who demonstrably haven’t posed any problem, and have completed their treatment, are now disallowed persons not only under the state system which performs background checks, but the federal system as well. We just changed the application of federal law.
I can just imagine how reluctant anyone will be in the future to obtain any sort of mental health services, given that whoever provides them with services might possibly refer their patient the the courts for involuntary treatment for any reason, and the result will be that they will have to plead their case at both a state and federal level to have their background check information expunged. This affects not only firearms purchases, but employment in sensitive jobs and security clearances as well. How many perfectly healthy individuals, who may have recovered from mental illness long ago are going to have their jobs as teachers, police officers, government contractors or health care providers abruptly terminated because their name suddenly pops up on a list? It’s bound to be quite a few.
Once you find yourself on a federal list of disallowed persons, it’s nearly impossible to get your name off, and you’re not notified in the first place that you’re on it. So a regular citizen, who ten years ago received involuntary treatment, fills out a BATF Form 4473 just as he might have done last week when he was approved, and with the same information on the form is denied. In addition, he has now committed a federal felony for wrongly claiming to not be a ‘prohibited’ person. To make matters worse, each one of these persons who is now going to secretly show up on this prohibited persons list, and who currently owns a firearm, is now guilty of a felony for unlawfully possessing a firearm. A citizen can go to the state and have their rights restored, but these are federal laws, and there is no provision for restoration of federal rights on this basis. Although you’ve done absolutely nothing, because of a retroactive and ill-considered change of executive policy, you are now permanently a ‘prohibited person’, and quite possibly a felon to boot. We used to link criminal activity with actual activity. Now with the stroke of a Governor’s pen, you are guilty of a crime.
This is one of those people who have just been caught up in this attempt by the Governor to look like he was doing something:
“I came back [from my tour of duty] last fall. I’m very worried that getting advice, counseling, or treatment could have ramifications on my ability to carry, own, and use firearms. I’ve been diagnosed with “mild PTSD” [Post Traumatic Stress Disorder] and am very anxious that treatment it is going to put me on some list. I believe I can handle the PTSD, if necessary, but it’d be a whole lot easier if there weren’t that Sword of Damocles hanging over my head.
As it is, I’m treating myself based on information from public sources.”
We should really be happy we’ve “done something”. Now perhaps we can have the legislature address this, instead of a Governor inclined to rule by executive fiat. Kaine could have called a special session of the legislature to deal with this, but instead he wanted the glory of imposing this fix himself. It’s not much of a fix. It’s a travesty.
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You could still get your gun at a gun show!
Good grief…when was the last time the legislature actually fixed anything?
[Ed note: This comment posted from an IP address inside Manassas Park City Hall.]
Very thoughtful post.
First, Executive Order #50 does not apply to all people who have received involuntary mental health services. It applies only to those who have met the criteria established in Virginia Code 37.2-817 (which deals with those who are an imminent danger to themselves or others, or who have demonstrated they cannot properly care for themselves with treatment — http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+37.2-817). There are other circumstances where involuntary commitments can be made, but they do not fall under the pervue of Executive Order 50 since the order specifically points to the requirements of 37.2-817.
Second, it does not apply to *anyone* who seeks *voluntary* inpatient or outpatient treatment, so the claim that someone will not seek mental health treatment on his or her own is specious. The Executive Order, again, only applies to treatment as prescribed under 37.2-817. So the emotional quote from the returning soldier suffering from PTSD only serves to tug on our heartstrings, but has little bearing on the actual intent and implementation of the Executive Order.
Do you have the same reservations about the people who have had involuntary inpatient treatment 10, 15, 20 years ago but are still “on the list”? In essence, the only difference between involuntary inpatient and outpatient recommendations comes down to the ability of the city or county community services board to provide the proper treatment through an outpatient faciltiy (something not readily available in all Virginia jurisdictions).
Read 37.2-819. The form and order are only used to determine eligibility to possess, purchase, or transfer a firearm and are otherwise kept confidential. It is not used for employment screening and other background checks. For security clearances, depending on the level of clearance sought, there is already a section of the standard form that requires disclosure of any voluntary or involuntary inpatient or outpatient treatment for mental health disorders, so again, the concern that this reporting will impact clearances is, again, specious. In fact, as part of the clearance application process, you must sign a general release that allows investigators to review your medical and other (normally) private information. The presence of this data in the CCRE and NICS database would only expose someone who failed to disclose this required information in the first place (in and of itself grounds for rejection of a clearance and possibly a felony).
Perhaps you are misreading his post to some degree. I agree that voluntary treatment is not directly affected in this, although I’m sure such of the subtleties of this law will be lost on some folks like the one I quoted.
If these people are so dangerous as to be caught in 37.2-819, I can’t understand how outpatient treatment could ever be appropriate. That’s the crux of the problem, not whether such ordered treatment should revoke one’s rights.
I do have those same reservations about those already on the list, but their placement on the list was by act of the legislature, not executive decree. The legislature does have the authority in such matters, and the Governor by himself does not. I’m also concerned that the process to remove one’s name from the NICS list — with good cause — in some circumstances is nearly insurmountable, and that there’s no facility for citizens to know whether they’re on the list or not until they fill out a Form 4473 with what they believe is accurate information.
Someone who got caught up in this from a long-ago incident, at which time they had no idea they might become a disqualified person ten years later, could easily and innocently say on a 4473 that they are not prohibited when they actually are, and by saying that and there being a NICS record on them, would in fact have committed a felony for providing inaccurate information on the 4473, as well as in violation for every firearm they might have purchased since the incident up until the time they learned they were prohibited persons.
This is hasty, it’s entirely political, and I am concerned there are significant downsides here that haven’t been adequately considered.
Greg- you’re wrong about the felony for providing false information- an element of the crime is “willfully and knowingly”.
When it comes to federal prosecutions involving the BATF, whether that standard is consistently adhered to is a matter of some dispute. US. v. William O. Hayden is one example.
Most of us who want to scrupulously adhere to the law feel rather uncomfortable when an act of a Governor, not of the individual, makes one be in violation of the law. The general concept of our legal system is that a prosecutable criminal act is something that the alleged criminal has to do, and that’s why we generally disdain retroactive laws. This condition makes prosecution completely a matter of discretion rather than law, and that should be intolerable.
If great numbers of people have done nothing illegal, but because of a retroactive law are now technically noncompliant with a provision, they are at the mercy of their government as to whether they will be subjected to prosecution or not. I can’t imagine a condition more dangerous to liberty. We increasingly are becoming a society of unindicted criminals who reasonably fear that if we dare to criticize our masters we risk having the awesome power of the state descend and make an example of us.
In reference to the difference between inpatient and outpatient…
Do not confuse inpatient and outpatient mental health care with something like inpatient vs. outpatient surgery. In many cases, “outpatient” treatment may very well mean that the person is under supervised care 16 hours of the day and is allowed to leave the treatment facility to go to work or school (and in those cases, may have to report in on a set scheduled while not treated at a facility). This isn’t a case where a person sees a shrink once or twice a week and is left to their own devices for the rest of the time.
It also may very well mean that outpatients are escorted everywhere by teams of folks in white suits carrying butterfly nets. We don’t know the degree of supervision that is provided other than it is not 24 hours a day during the period this person adjudicated as a danger to themselves or others is receiving treatment. It could mean anything.
Why someone, who was determined to be a danger by a court, is allowed to wander freely at all is deeply disturbing. But rather than address whether it’s a good idea to have dangerous mental patients roaming about or not, we’re concerning ourselves with whether these mental patients wandering about in our midst should be disallowed firearms, but permitted to drive, operate heavy machinery, purchase large quantities of fertilizer, or obtain dangerous weapons on the black market.
This executive order is unlikely to make us safer at all, but it sure does provide political cover. Too bad it’s unconstitutional.
“Too bad it’s unconstitutional.”
Guess we’ll have to see what the courts say. It’s not like the AG is a big Tim Kaine fan, though, so I would expect that there is some actual legal grounds to the Executive Order unless you’re saying the McDonnel was also looking for something politically expedient.
My understanding of the interpretation is that the law covers those admitted involuntarily to a “treatment facility. ” The Executive Order takes a broader approach to what constitutes a treatment facility and interprets that to extend to any facility, inpatient or outpatient. The change to calling it a treatment facility was as a result of court interpretations and was made in 2005.
On what grounds do you say this is unconstitutional (and I assume you are referring to the Constitution of the Commonwealth of Virginia and not the US Constitution)?
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