Well, worth reading.
From the perspective of an elected county Sheriff, my testimony Monday.
Opposition to LD 1312 “An Act Regarding Access to Firearms by Extremely Dangerous and Suicidal Individuals”.
In essence, this LD requires a search warrant to be issued through the courts on the word of a petitioner, and then law enforcement has to remove the personal property of a respondent using a civil approach without an underlying crime because that respondent may commit a crime sometime in the future.
I know that in the LD there is a provision that if the petitioner makes a false statement, he/she would be subject to a class C crime. My question is how do you prove intent? That person may truly believe what they were saying and you will never get a conviction otherwise in my opinion. The petitioner would be making statements regarding the mental health of an individual from the perspective of a laymen and may have ulterior motives. In the meantime you have violated someone’s 2nd, 4th and 5th amendment rights.
In Brinegar v. United States, the US Supreme Court said “Probable cause exists where the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a belief by a man of reasonable caution that a Crime is being committed”. Where is the crime when it has not occurred yet?
Let me explain another concern. Currently when we have a person in crisis and in their home, we get involved when called but do not force a confrontation. Even then, unless we have probable cause to charge or arrest a person, we usually just talk the person into taking a trip to a hospital to be evaluated by clinically trained personnel. If they refuse and we have multiple sources of a threat of potential harm, we can take the person into protective custody and transport them to the hospital – not to jail.
Using the logic of the current LD being proposed, potentially we can have non clinical persons making an allegation that another person has guns and that they believe he is unstable. These people could then swear that what they are saying is true. An affidavit is produced to a judge who is also not a professional clinician who signs a search warrant. So now we are required to go to a person’s residence who is in crisis, force entry and remove firearms. We do not want to get shot, nor do we want to shoot somebody serving a warrant regarding a civil issue. We do not want to be sued because we are potentially violating a person’s 2nd, 4th and 5th amendment rights.
We have many more occurrences of intoxicated drivers killing people on Maine roads. Should we draft an LD that allows the courts and law enforcement to confiscate alcohol and motor vehicles of all alcoholics who have drivers licenses and own vehicles? More to the point, should we do so on the complaint of someone who hasn’t “breath tested” the subject, and does not know how that is done?
This LD concentrates more on removing guns and violating a person’s rights than it does to address the well-being of a person who may be in crisis. I remind everyone that in the books as of right now we still have Title 15 Chapter 15 section 393 E which talks about prohibited persons who have been involuntarily committed. Here we have trained clinicians who have made a determination (blue paper) that would be backed up by the courts who then could issue a search warrant. I feel much better under these circumstances than the one described in the current LD. Even then, we would wait until the person in crisis is in custody somewhere being evaluated before we entered his house for weapons. While we have him in custody, he could actually interact with a judge, just like we do currently with initial appearances from jails. There’s no reason we shouldn’t be treating this exactly like what it is – a preliminary injunction in a civil case.
In its present form, this LD is subject to abuse and would have no positive impact. It would actually increase the danger for people in crisis who need mental health services. It would be more dangerous for law enforcement who now must deal with those people, and reduce the likelihood of a peaceful resolution. This LD (1312) “ought not to pass”.