HB 88 Fails to Pass the Senate After Overwhelming House Vote

Filed in Delaware by on June 28, 2013

HB88 is a bill that sought to better define (so it could actually be enforced) procedures by which dangerous mentally ill persons could be restricted from firearm ownership, but also creates a path to let those restricted demonstrate that they are no longer dangerous and able to manage their gun rights. This is a great bill — one that was worked hard by the House, to ensure that concerns of all sides were reasonably dealt with and it passed the House 40-1. A bipartisan victory by any stretch of the imagination — and it means that the House reached a remarkable consensus on this issue. This bill was sent to the Senate, who voted it down tonite 6 – 13, with 2 not voting. One of the not voting was Bryan Townsend (D-11), which surprised a great many people. Cathy Cloutier voted NO on this, even though she is reported as telling folks she would vote YES. Michael Barbieri is the bill’s primary sponsor, and I am told that he needs to get just one Senator who voted NO to bring it back to the floor.

To say that this defeat is a surprise is an understatement. It’s overwhelming majority in the House should have been an indication to the Senate of just how well this bill had been worked. In addition, the NRA was NEUTRAL on this bill — as good as it gets on a gun measure. How did it get defeated? Ever hear of a group called First State Liberty?

It is run by Eric Boye, who is plenty new here. And I understand that after HB88 passed in the House, a campaign of robocalling began to get people to contact Senators on this issue. As is often the case, the robocall was more about scaring people than actually informing them. This group is toxic enough that even the Delaware State Sportsmans Association has warned its membership about this group — saying that is is a counterfeit organization that is run by persons with their own interests at heart, rather than those of gun owners:

Two of these groups, the National Association for Gun Rights and First State Liberty, are not, I repeat NOT, representative of DSSA or NRA here in Delaware. The leaders of these two groups, Dudley Brown and Eric Boye, have their own personal agendas and do not have the best interests of Delaware’s law-abiding gun owners, hunters, sportsmen & women, and Delaware’s Second Amendment activists at heart. In fact, Mr. Brown, isn’t even a Delaware resident. All they want is your money!

Even more interesting is First State Liberty’s tale of how John Sigler (shooter of pigeons, GOP resigner) helped make sure that the GOP in the House voted for HB88. Why? The folks at First State Liberty allege that Sigler was using a bill to get guns out of the hands of the dangerously mentally ill to enrich the company that he works for, Psychotherapeutic Services. Got that? Sigler hung around long enough to get HB88 through the House so that his company could benefit, but then why would he resign before it got through the Senate? No one with a scheme like the one spun up by First State would actually leave the work undone — letting go all of these potential goodies just when they are in reach?

What is really amazing is that the Senate didn’t just talk to the House to make sure that their concerns were dealt with in this bill. And that the Senate wasn’t just reacting to the usual wingnut conspiracies. Because it sure looks like they did, rather than listening to the local organizations and groups who really do represent Delawareans. Delaware State News has some reaction by Beau Biden:

“This is the Aurora bill,” A.G. Biden said, referencing the July 2012 movie theater shooting in Aurora Colo., where James Eagan Holmes killed 12 people and injured 58 during a screening of “The Dark Knight Rises.” Holmes had met with mental health professionals prior to the mass shooting and had made homicidal statements, but action had not been taken.

“This is to fill that gap,” A.G. Biden said of individuals who have been voluntarily committed for treatment, but could still potentially purchase a firearm.

The NJ reports that that AG Biden’s expert providing testimony on the bill may have confused some:

Dr. Neil Kaye, a Hockessin psychiatrist tapped by Biden’s office for support, appeared to create some confusion on the Senate floor by saying the gun bill would only apply to those committed to an institution to receive treatment for a mental illness. The bill, in fact, could have been applied to anyone believed to be dangerous by a mental health professional.

As of this writing, I don’t have the final vote tally, but will post when I can get it. But it looks like Senators Townsend and Poore sat this one out and Senator Peterson actually voted No. (CORRECTION: Senator Peterson voted YES according to the tally posted today.) The entire situation is pretty remarkable, since there’s been an insistence that guns are not the problem, but mental illness is. Yet here is a pretty good bill that narrowly defines how a limited group of those who might be dangerous could be kept away from guns, and we have the Delaware State Senate running away from it.

ADDING — the Vote Tally (thanx Pluribus):

Blevins                  Y

Hall-Long             Y

Henry                    Y

McDowell            Y

Peterson             Y

Sokola                   Y

Bonini                   N

Bushweller         N

Cloutier                N

Ennis                     N

Hocker                  N

Lavelle                  N

Lawson                 N

Lopez                    N

Marshall               N

McBride               N

Pettyjohn            N

Simpson               N

Venables             N

Poore                    X

Townsend           X


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"You don't make progress by standing on the sidelines, whimpering and complaining. You make progress by implementing ideas." -Shirley Chisholm

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  1. Conspiracy Theories! | Common – sense gun control laws ? Not for Delaware – Newsworks.org (blog) | June 28, 2013
  1. AQC says:

    Call me a conspiracy theorist, but, I think this is all political games and they are trying to embarrass Biden. If not, they have proven to be the biggest bunch of political cowards I have ever seen. Damn sad to see Townsend and Poore follow that lead!

  2. Nah, if Peterson and Townsend didn’t support it, there are serious questions about the bill. I raised questions about the bill, particularly as it might impact mental health professionals who could be subjected to 20-20 second-guessing. I was surprised that the bill passed so overwhelmingly in the House

    I suspect that, if Biden spends the next two days clarifying the ‘confusion’ that Biden’s ‘expert’ created on the Senate floor (after all, if your expert doesn’t know what’s in the bill, then he’s no expert), then it will be reconsidered.

    Good intent is not a reason to pass flawed legislation. The bill has to pass legislative muster. In this case, not enough senators felt that it did. I tend to agree with them.

  3. cassandra m says:

    It isn’t clear to me that this is a “flawed bill”. The real burden here on making any determination anyone being dangerous enough to be restricted from firearms is on the DoJ, and even then they get a court order to remove firearms. For those who think that the mentally ill — especially those who could be violent — how, exactly, do you think that should happen? Because the only people who are qualified to make that determination are being sheltered from “20-20 hindsight” pretty uniquely in this situation.

  4. anon says:

    This seems like the most well thought out piece of gun legislation this session. It narrowly defines who it applies to, has due process and review, and there is an open pathway to get your gun rights reinstated. I’ve read the bill, but for the ADHD people out there, he’s the 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.


  5. A long synopsis does not a perfect bill make. In fact, it’s not even part of the bill. You’re asking mental health professionals to sometimes make close calls. If/when they’re wrong, they become liable. Police are expected to do the same thing. Guess what? In the bill, they are not held liable for those same errors in judgment.

    And, when Biden’s hand-picked expert gets on the floor of the Senate and is not able to explain what the bill would do, in fact, makes a significantly-fundamental error, is the Senate supposed to overlook it?

    I repeat what I said. If there is misunderstanding on this bill, it’s at least in part due to the author of the bill, the AG. It is up to him to correct those misunderstandings.

    I think he will, and I think the bill will pass. But I don’t fault the Senate for backing off yesterday after what they heard on the floor.

  6. bookkeeper's son says:

    Isn’t Kaye the guy who wears neckties made of wood?

  7. cassandra_m says:

    I’ll correct my post to reflect Senator Peterson’s actual vote. One of the articles I read last night had her voting No. Thanks for the vote tally and I apologize for reporting Senator Peterson’s vote wrong.

  8. Ditto. The original roll call online had her voting no.

  9. When you’ve got Marshall, McBride, Poore, and Townsend either voting no or going not voting, you’ve got a communications problem. All four have steadfastly supported and, in some cases, sponsored, gun control legislation. And Bushweller and Cloutier have also supported gun control legislation.

    Hope that Beau is in the Hall on Sunday.

  10. anon says:

    The NRA was good with it, I’m baffled that Marshall, McBride, Poore and Townsend would take a harder line on 2nd Amendment rights than the NRA, all signs are pointing to these tea party groups and the First State Liberty PAC throwing a last minute wrench into the gears, and if that’s the case, I’m disappointed:


    “We no longer consider the bill a significant threat to law-abiding gun owners,” NRA lobbyist Shannon Alford told the Senate…

    “Today, our phones were flooding,” said Senate sponsor Margaret Rose Henry, a Wilmington Democrat. “… It was a grassroots effort at the last minute that really threw things off.”

  11. PluribusUnum says:

    I’ll honestly say I haven’t been paying attention to this and perhaps this is a communications problem. However, I will note that certain Senators appear to get the benefit of the doubt around here, while others are roundly lambasted with little or no hesitation. I don’t think that’s fair (not that you guys purport to be, nor should you necessarily), but it does make your purported “independent” analysis of goings-ons less relevant.

    If your chosen guy or girl does anything to crack the narrative you’ve worked tirelessly to prop up and promote, you can’t just blame Beau Biden for it. It makes you look like a fan-boy and it doesn’t help your candidate(s) become better. It insulates them among an already frighteningly yes-men group of people, and that’s how relatively good public servants become shitty.

    Just my two cents.

  12. ACLUFan says:

    This bill gave the Governor the ability to determine which agencies could enforce it. It was not limited to mental health professionals (unless amended after it passed house). If it was truly limited to medical doctors with psychological training, I would support it. As written it was too broad of group who could initiate action.

  13. cassandra_m says:

    I’m with anon, and I don’t get how these Senators could vote against or sit this out. Townsend seems to verify Henry’s assertion that there was a last minute surge of so called “grassroots” calls. This may have been a communication problem, but I need to know how this could work so incredibly well in the House and fail utterly in the Senate. Especially when this looked like it was on a glidepath to done.

  14. cassandra_m says:

    Sorry, ACLUFan, you are hugely confused here. There are a couple of active nodes in this bill:

    1. The mental health professionals who are already covered under the Duty to Report statute
    2. The law enforcement agency who does the investigation of the reported person, reporting to the DoJ.
    3. The court who orders the removal of guns (if it gets that far).

    Reading the bill helps.

  15. Steve Newton says:

    The bill had several major flaws.

    1. In a bill supposedly only a “common sense” bill to keep guns out of the hands of the mentally ill, there were provisions to remove all gun rights from anybody busted for non-violent drug possession or anybody who has ever been convicted of misdemeanor spouse abuse. Sorry, but possession of a joint or somebody else’s prescription medication is an awfully weak reed to rest upon when you are talking about an effectively permanent elimination of gun ownership rights. Maybe you believe these things should, in their own right, be reasons for eliminating somebody’s 2nd Amendment rights [I don’t], but as it stands the hype about this bill as being only “common sense” prohibitions on the seriously mentally ill was not true.

    2. This bill actually did not include strong enough protections for mental health providers who, in good faith, did not report someone. I’ve been in that position (did it for over a decade for the military) and the liability indemnification for mental health providers working inside professional standards was not strong enough.

    3. The original bill (can’t recall if the amendment passed off the top of my head) employed a “preponderance of the evidence” standard for removing a constitutional right. That’s ridiculous. The appropriate standard should be at least “clear and convincing evidence.”

    If the proponents were serious about this bill, all of these could have been modified with amendments, but no legislators I spoke to (and I communicated with several) were interested in discussing that. Several, however, were surprised that the sections about drug arrests was in there (apparently they had only read the synopsis and not the bill).

    Eric Boye has been in Delaware for quite some time. He has worked with the Ron Paul organization and its successor, the Campaign for Liberty, for at least 4-5 years. The fact that nobody here has heard of him doesn’t change that. No, his organization and the Delaware Sportsman’s Association don’t see eye to eye. So what?

    Final note: when you send somebody to testify for a bill, they really should have read it and understood it first, shouldn’t they? Beau didn’t cover himself with glory on that, did he?

  16. BullMooose says:

    Steve: Well-established state and federal law contain the drug and domestic violence provisions you reference. HB 88 doesn’t change that. The language in HB 88 that you reference is already existing law. The argument that HB 88 somehow goes beyond mental health is wrong. And the bill was changed in the House to move the burden of proof to “clear and convincing.”

  17. cassandra_m says:

    1. It isn’t busted for drug use or possession, it is convicted for drug use or possession.

    (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;

    And anyone convicted of domestic violence is already, by definition, violent.

    2. The bill specifically references §5402 of Title 16, which specifically holds those with a duty to report harmless from reporting.

    3. Preponderance of the evidence seems reasonable for an assessment of potential violent mental illness. “Clear and convincing” isn’t always evident even to professionals. Besides, the possible removal of firearms needs a judge to agree that a case has been proven and the possible removal is temporary. The patient does have a pretty clear path to getting his or her rights restored.

  18. ALCUFan says:

    You have to read past the synopsis.

    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.

    This says the Governor can determine what agencies and regulations make up this law. Something this important should not be left up to the executive branch to put whatever spin they want on the law. This is far too much executive power. And mental health profession is far to broad a group to be making this decisions. This law will be abused by state agencies like DHS. Do you really think the State police investigation will be of any value? There is no chance they will take the risk of saying they find no evidence. So any accusation will end up in court. We should limit those who can make these accusations to the few who are truly educated to make assessments.

  19. AQC says:

    There’s no way these guys didn’t understand this bill, even with Dr. Kaye’s tetimony. And El Som and Steve, you’re wrong about the protections for mental health providers. Even the mental health providers agreed they were adequately protected. The NRA did not even oppose it. This was pure political gamesmanship and Townsend and Poore bought into it!

  20. A Lowly Muskrat says:

    For a site that claims to be “Delaware Liberal”, the content and comments here are extremely illiberal on a frequent basis. Quite a misnomer.

    In addition to Steve Newton’s insights, this bill is unconstitutional. It completely abrogates Due Process and the right to a Jury Trial, along with Common Law protections.

    Bill of Rights, Delaware Constitution, Article I, Section 7:

    Ҥ 7. Procedural rights in criminal prosecutions; jury trial; self-incrimination; deprivation of life, liberty or property.

    Section 7. In all criminal prosecutions, the accused hath a right to be heard by himself or herself and his or her counsel, to be plainly and fully informed of the nature and cause of the accusation against him or her, to meet the witnesses in their examination face to face, to have compulsory process in due time, on application by himself or herself, his or her friends or counsel, for obtaining witnesses in his or her favor, and a speedy and public trial by an impartial jury; he or she shall not be compelled to give evidence against himself or herself, nor shall he or she be deprived of life, liberty or property, unless by the judgment of his or her peers or by the law of the land.”

    Make no mistake, the procedure established by this bill may be underhandedly called a “Judicial Hearing”, but this is a criminal prosecution, whereby a person found guilty of the dubious crime of being “mentally ill” will be deprived of his or her rights and property. To those who may vainly attempt to refute this point, it is plain that this is a criminal proceeding: the bill is established under Title 11 of the Delaware Code, Crimes and Criminal Procedure. Call it by any other name, but it remains a criminal prosecution.

    Constitutional violations:

    “…to meet the witnesses in their examination face to face…for obtaining witnesses in his or her favor…”

    The bill has no provision allowing a respondent to directly examine his or her accuser (The mental health professional informer, in this case) , nor does it allow for the calling of witnesses on his or her behalf.

    “…a speedy and public trial by an impartial jury…”

    This bill establishes a proceeding that is the complete opposite of a public jury trial. A closed-door hearing, prosecuted by information, where the primary evidence stems solely from a mental health professional’s opinion (The mental health field itself being a convoluted and irrational affair), pursued by conviction-hungry prosecutors, and decided from on high by a lone judge behind the mighty bench.

    It’s a far cry from standing openly in judgement before an assemblage of one’s peers when criminally accused.

    An argument can also be made for violation of Section 8, prosecution by information and deprivation of property without compensation.

    Furthermore, the evidentiary standard established by this statute for the proceedings, “clear and convincing evidence”, is a debasement of Due Process rights; a degeneration from the requirement of conviction “beyond a reasonable doubt” that is among the greatest protections common law provides to persons accused.

    As a final note, I shall wax in verse:

    Whence came the notion of pre-crime?
    Is it for the state to convict,
    Based on perceived danger alone,
    And rights from peaceful men be stripp’d?

    Shall it be so? No, No say I!
    Men that have done neighbors no harm,
    Commit no crime, shall serve no time,
    Nor be deprived of right to arms!

  21. cassandra_m says:

    Sorry, ACLUFan — the section you are referencing here says that the Governor and his agencies can make the appropriate regulations for this effort, which is what the Executive office does. It does not say — as your original post noted, that the Governor gets to decide who gets to enforce this law.

  22. Steve Newton says:


    I have been a mental health provider and I have spoken with about a half dozen in DE since this bill was up. Several were concerned because the language does not indemnify them if they make a good faith decision, operating within standards of professional care, that a threat was not credible and therefore do not report it. This creep has already been apparent in the language used by the US Dept of Ed in its management of sexual harassment cases.


    The evidence piece is not for the providers it is for the police going to the judge for the order. And yes, damn straight, I want it to be clear and convincing evidence. Preponderance of the evidence is merely a determination that what you are alleging is “more likely than not” to be accurate–even 50.0001% counts. Moreover, preponderance of the evidence does not even require the investigator to have a “personal moral conviction” that what s/he is advocating is true. That’s too weak a standard. If someone makes a credible threat, it is reported, and then subsequent police investigation turns up any additional evidence, you would have no trouble hitting clear and convincing evidence. But to use preponderance on somebody who has yet to commit a crime is ludicrous.

    3. My error in wording “bust” vs “conviction.” My point remains. A conviction for having an illegal xanax or simple marijuana possession is NOT by any means an indicator of violence or violent tendencies. It is a ridiculous attempt to expand the ability to remove firearms for drug possession at the same time the other states around the country are decriminalizing and even legalizing same.

    As for the fact that a misdemeanor conviction for domestic violence qualifies you for losing your right to a firearm, please explain how any conviction for assault or assault and battery as a misdemeanor is any more or less and indicator of violence. Judges already have the authority to order weapons seized upon a significant complaint (not even conviction) or domestic violence, as happened to the Rehoboth Beach cop a couple years ago.

    I reiterate: this bill was heralded as only keeping weapons out of the hands of the seriously mentally ill. That’s what it said in the synopsis; that’s not what it said in the bill.

  23. cassandra_m says:

    So here’s what we know about A Lowly Muskrat — he hasn’t and won’t read the bill at hand. Because all he can do is just argue the State’s Bill of Rights.

    And if you read HB 88, it specifically says that respondents have the right to present evidence and to be heard at the proceeding. Which isn’t a “trial” since no one is being charged or tried with anything criminal.

    A note to A Lowly Muskrat — the place you want to make those arguments is over at Delaware Politics, where they are accustomed to being routinely conned.

  24. cassandra_m says:

    But to use preponderance on somebody who has yet to commit a crime is ludicrous.

    So under this standard the Aurora shooter wouldn’t have gotten disarmed.

    Which means that there are no standards under which the violently mentally ill can be disarmed. This is the argument you should be making then, rather than pretending that the bill does stuff that it quite clearly doesn’t.

  25. Steve Newton says:


    Show me where I’m wrong in that this bill makes it possible for people convicted of simple possession to lose their right to own firearms or STFU about me misreading the bill.

    Here’s what it says: (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: … (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;

    Seems like plain English to me but I’m sure you have a wonderful argument to refute it.

    Actually judges already possess the power in Delaware to order at least a temporary seizure of firearms–the purpose of this bill was supposed to be to stiffen the requirements for mental health providers to report it. And frankly I have yet to see that any mental health provider in Colorado saw evidence that fell into the provisions of this law–it may be out there but I haven’t seen it.

    Clear and convincing evidence is not a tough standard to meet; it is met every single day by police across the nation with respect to potentially violent individuals. Preponderance of the evidence literally makes the report of the mental health professional sufficient evidence–in and of it itself–for a judge to issue an order.

    The fact of the matter is that I already argued in favor of many of the precepts in this bill; I only actively opposed it when there was a refusal to consider taking out the ridiculous drug offense standard and making the minor change (it would have been about three or four words) to slightly strengthen protections for mental health providers.

    But you go on with your fantasies that I oppose keeping weapons out of the hands of the mentally ill.

  26. Will Liberty says:

    The rumors I heard implied that Sigler resigned after his conflict of interest was revealed. He used to run the Delaware chapter of the NRA, and the state’s GOP. Of course the NRA was neutral. Of course the NRA was bad mouthing First State Liberty. Of course the Republicans in the house voted in lockstep with their party chair. Now that Sigler has resigned from the DEGOP leaving “the work undone”, it makes sense that the Republicans in the Senate and even some of the Democrats would back away from this bill.

  27. A Lowly Muskrat says:

    So here’s what we know about Cassandra — She hasn’t and won’t read the bill at hand. Because all she can do is just toss insults and deflect.

    Or perhaps her reading comprehension and critical thinking skills are severely affected by what she wants this bill to be, not what it actually is. A typical malaise found in those blindly bound to their political masters.

    The judicial proceeding proposed in HB88 is an end-run around the constitutional guarantee to a jury trial. Of course they don’t want to call it a trial in this statute. It’s a clever ploy, one often used by those who find inalienable rights, “distasteful things that have no place in civilized society.”

    The respondent is charged with being mentally ill. If found guilty of this crime, the respondent is stripped of the right to possess firearms.

    Might I direct you to a message board that is more in-line with your arguments? This is a place where members are accustomed to being routinely conned: http://www.revleft.com/vb/group.php?groupid=9

  28. cassandra_m says:

    In which we find that A Lowly Muskrat is an idiot:
    So here’s what we know about Cassandra — She hasn’t and won’t read the bill at hand. Because all she can do is just toss insults and deflect.

    I’ve actually written comments here that provide specific citations and quotes from this bill. Now who’s deflecting? You can engage on this bill or you can be gone.

    And there’s no “charge” of mental illness. None. And if there was, you’d cite it.

  29. cassandra_m says:

    Show me where I’m wrong in that this bill makes it possible for people convicted of simple possession to lose their right to own firearms or STFU about me misreading the bill.

    Really? I keep pointing out that you are wrong about the providers not being protected. And I have pointed out that your evidence standard won’t disarm many of the mentally ill. Yet, you want to get belligerent over the fact that people convicted of drug crimes are disarmed. And they are. I haven’t said they aren’t. Plenty of people who are convicted of crimes lose some of their rights — including their right to walk around with the rest of us. Losing their ability to own guns for awhile doesn’t seem too much of a stretch to me.

    So stop your usual dishonesty or STFU.

  30. ALCUFan says:

    So what in that bill keeps the Governor from having DHS or the Department of Education initiate actions to take guns from those who they think may be a threat? It seems pretty clear it is the governors choice how to administer this law. If a child draws a picture of gun, you can expect some state agency will be over zealous and initiate an investigation. For something this serious there should be more controls to prevent fraudulent reports.

  31. Steve Newton says:


    I am not necessarily “wrong” about the protection for providers–we simply disagree on how much protection is enough.

    You certainly did change your argument. In your first sentence you described the bill as this: a bill that sought to better define (so it could actually be enforced) procedures by which dangerous mentally ill persons could be restricted from firearm ownership

    When I pointed out that this included drug offenses and not just the “dangerously mentally ill” you nitpicked over “bust” vs “conviction” but didn’t respond to the criticism that a drug conviction for possession was made synonymous with being “dangerously mentally ill.” Moreover, the bill as written makes it almost automatic that people convicted of simple Marijuana possession be deprived of gun ownership.

    Instead, when embarrassed about the fact that you couldn’t defend it, you drop FOR THE FIRST TIME into an argument that it’s OK to take guns away from people for simple possession drug busts. And that’s OK, but it means that you already knew that what you wrote in the very first sentence of your post was not accurate.

    This bill does far more than create a system for taking guns out of the hands of the “dangerously mentally ill” unless you are now prepared to make a serious argument that smoking marijuana (legal in several states now) is an indicator of personality imbalance serious enough to almost automatically deprive somebody of their right to own a firearm.

    If the bill had actually done what the synopsis said, and only that, I could even have lived with the inadequate provider protections. But the fact of the matter is that the authors tried to sneak in something else, and they lost the legislation because of it.

  32. Steve Newton says:

    ACLUfan, please don’t “help” me here. Nothing in this bill addresses kids drawing pictures in school, nor could those kids own firearms legally to take away.

  33. AQC says:

    Steve, I too am a provider of mental health/substance abuse care and NONE of my colleagues object to this bill. It passed the House overwhelmingly with the support of many more than a half dozen mental health providers supporting it. And, we are completely protected in this bill, so I don’t understand what you are talking about.

  34. Steve Newton says:

    AQC I made my extended argument in the link below (it was listed is Issue 2 if you don’t want to read the whole thing) but here’s the change I wanted:

    (1) In the professional opinion of the mental health services provider, based on current standards and practices within the field, 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;

    My capsule argument is that the current language does not protect the mental health provider in certain situations wherein a professional judgment is required to decide NOT to report someone. Perhaps the provider does not believe that the threat is credible at that time, but several months later the individual (having left therapy) commits a gun-related crime. In cases that I have personally witnessed both in the military (related to guns) and in higher education (related to sexual harassment, where the same type language was used) the circular argument was then made that because the individual DID commit such a crime later the original threat (no matter when or how issued) MUST HAVE BEEN credible.

    I would simply like the provision that allows for a mental health professional operating in good faith and within the bounds of professional conduct to have made a wrong judgment or a judgment that could only be made to appear wrong in hindsight receives some protection against liability there.

    I would argue that if the individual provider is keeping good case notes it should be pretty easy for a reviewing agency to make that determination.


  35. A Lowly Muskrat says:

    I see, Cassandra… so it’s more a lack of a grasp of the English language. Let me explain expansively, since you have trouble comprehending referential prose.

    A charge is a statement of accusation. If there is no charge, then what, pray tell, is the respondent defending him or herself against in the hearing? What is it that the prosecution avers?

    I’ll take the liberty of answering my own question. The prosecution is charging that the respondent is mentally ill and poses a danger to self or others. See below.

    “The Department shall have the burden of proving by clear and convincing evidence that the respondent is dangerous to others or self as defined in Section 5122 of Title 16. ”

    Section 5122, Title 16.

    “(2) ‘Dangerous to others’ means that by reason of mental condition there is a substantial likelihood that the person will inflict serious bodily harm upon another person within the immediate future. This determination shall take into account a person’s history, recent behavior and any recent act or threat.

    (3) ‘Dangerous to self’ means that by reason of mental condition the person is likely to cause injury to oneself and to require immediate care, treatment, or detention.”

    To reiterate from earlier, this hearing will consist of the opinion of a mental health professional and further evidence presented by the prosecution, weighed against the evidence provided by the respondent, and decided upon by a judge in a closed, confidential setting. The respondent has no right to counsel, no right to face his or her accuser, no right of to guilt being proved beyond a reasonable doubt, and no right to a jury.

    It’s a railroad job supported by a questionable charge of mental illness.

    This bill is ill-conceived, illiberal, and iniquitous for individual and society.

  36. anon says:

    I’m pretty sure there are many circumstances where there has been no conviction but you are still prohibited from possessing a firearm, like if there is a protection from abuse, PFA, against you, if you’ve been dishonorably discharged from the military, if you’re here illegally, if you renounce your citizenship, etc. A PFA, for example, is a court order, there has been no trial by jury, but you still will lose your right to possess firearms.

  37. A Lowly Muskrat says:

    A worthy point, and separate laws to argue another time. Their existence, whether just or not, does not justify the perpetration of further injustice.

  38. A Lowly Muskrat says:

    Additional verse:

    In all men thought does range freely,
    To light and dark and plain and bold.
    State of mind by others divined,
    A trusty gauge of mental hold?

    This judgement used in law with force,
    Based solely on the “common need”.
    Bar counsel, witness and jury,
    From court alone comes the decree.

    Where is the crime that has been done?
    In future only is it seen.
    No harm, no foul, was that the rule?
    A deed not done is not a deed.

    Whence came the notion of pre-crime?
    Is it for the state to convict,
    Based on perceived danger alone,
    And rights from peaceful men be stripp’d?

    Shall it be so? No, No say I!
    Men that have done neighbors no harm,
    Commit no crime, shall serve no time,
    Nor be deprived of right to arms!

  39. gunowner says:

    This bill was too broad, that’s why it was killed and will remain so.
    Mental Health = Great bill for Pharmaceuticals
    Gun Control = Evasion of Delaware rights.
    Sum it all up into one = HB88
    Most gun-grabbing poorly written bill of this decade for DE.

    Now take Chicago for example, there’s a change of events. Everyone can concealed carry. We should study them now and see if the crime rate goes down or up.

  40. AQC says:

    Section 3A spells our immunity as practitioners and agencies. This protects us more than the old code. As far as not making reports, we have never been specifically protected from what people will say we should have done after an event. That’s where best practices and good documentation come in.

  41. cassandra_m says:

    So what in that bill keeps the Governor from having DHS or the Department of Education initiate actions to take guns from those who they think may be a threat? It seems pretty clear it is the governors choice how to administer this law.

    If you were reading this bill you would see that the action nodes I noted for this thing are — you know — the action nodes in the bill. You are free to spin up these silly scenarios that have no relationship to what is in this bill, but what we get is that you haven't read this thing. You just want to spin up some worse case scenarios that have nothing to do with the text at hand. Holla at us when you've read this thing.

  42. cassandra_m says:

    You certainly did change your argument.

    Um, no. You are flailing around looking for a way to not look as wrong as you are here. You don’t think I get your MO by now? This bill is predominantly about getting guns away from the dangerously mentally ill. Adding on the drug charges and the domestic violence may be overreach, but there isn’t a legislature in the country that doesn’t take any opportunity it can to further punish those convicted of drug crimes. And the drug crimes certainly weren’t the objection that killed this bill. Because I’m really sure that Greg Lavelle wants to see advertising that he voted to let drug thugs keep their guns. This bill is *still* focused its intent to deprive potentially dangerous mentally ill from having guns. That is why there is a process to report (one that relies on those with a Duty to Report and the indemnity provided to them), to investigate, get a court to agree and to let the respondent make a case for getting their gun rights back. But just because you want to focus on the drug convictions doesn’t make this bill any less about trying to disarm the potentially violently mentally ill.

  43. cassandra_m says:

    The idiot is still here:
    A charge is a statement of accusation. Indeed. And a criminal charge is made by a government against someone who is accused of a crime. Under HB 88, the government is not accusing anyone of a crime, which is why there is no jury.

    And this s a completely dishonest answer to your own question:

    “The Department shall have the burden of proving by clear and convincing evidence that the respondent is dangerous to others or self as defined in Section 5122 of Title 16. ”

    There is another whole sentence that follows that:

    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.

    Which not only proves that you are still an idiot, but you are one that is completely in the business of deceiving yourself. Lucky no one here is relying on *your* judgement for anything.

  44. John Young says:

    I love how our Senate can accept nuanced and evidence based arguments to make decisions on guns, but when it comes to schools, the mantra appears to be just follow the Gov.


  45. Steve Newton says:

    Adding on the drug charges and the domestic violence may be overreach

    … and thank you for that concession.

    Other than a concern about provider liability I never had a major problem with the mental health portions. But you don’t accept that overreach (which would potentially cause far more people in Delaware to lose their rights than the other provisions), and if it had been stripped out via amendment the damn thing would have passed.

  46. A Lowly Muskrat says:

    Wow, Cassandra, so you’re actually a complete moron, to match your insult. I was answering your question about who was being charged.

    Take the answer and refute the specific point, but don’t try and twist your argument into something else. This seems to be a pattern with you. The only one deceiving oneself is you.

    And to your point about a the statute not presenting as a jury trial offense, that’s the point. It’s an abrogation of first rights. The state cannot just prohibit a person’s right to bear arms (among other things) by judicial fiat. But at this point, I hardly expect you to understand a line of reasoning that requires a dab of intelligence.

  47. anon says:

    There is no trial by jury when the court confiscates weapons from someone with a PFA. A complaint is made, it’s investigated by the police, a judge makes a ruling the police confiscate weapons. This law is no different, except the complaint comes from a mental health provider or a counselor, it’s investigated by the police, it goes to the AG, a judge makes a ruling.

    This is exactly the law that the gun rights people claimed they wanted, one that targeted the dangerous people who were going to walk into that movie theatre armed and kill people. There are enough checks in place to prevent innocent people from being disarmed, the accused has the right to prevent evidence and witnesses, and if someone’s guns are confiscated because of this law, they have the ability to petition to get them back, they are not disarmed forever.

  48. A Lowly Muskrat says:

    You may be willing to place your countrymen’s rights in the hands of a judge, and deny to them the benefit of the judgment of their peers, but I am not.

  49. anon says:

    I’m not sure what country you’re living in Muskrat, but here in the USA our citizen’s rights are in the hands of a judge on a daily basis.

  50. A Lowly Muskrat says:

    My country lies between the Chesapeake and Delaware Bays.

    To your counterpoint: Existing injustice does not vindicate novel injustice.

  51. anon says:

    Muskrat do you really believe that people with a PFA against them should be able to have guns? I would like you to explain that.

  52. A Lowly Muskrat says:

    At the moment I will decline as I’d like to stick to the topic at hand, HB88, but I’d be happy to talk with you about it another time if you care to discuss it. I also need to do some additional research on that particular topic before I could discuss it with confidence.

  53. Seann says:

    The DE Senate shows some concern for the 2nd amendment. There is hope in this world.

  54. anon says:

    Do you really think the framers of the US Constitution thought that dangerously mentally ill people should own guns? During the founder’s time, the mentally ill were chained to walls in prisons, beaten and starved.

    So many times during the gay marriage debate, these so called constitution loving people (not you Steve), told me that the framers never envisioned two men marrying.

    Do you think they envisioned a dangerously mentally ill person being able to legally obtain guns? These gun fanatics think the solution is that everyone wear a gun on their hip, instead of putting into place common sense laws that prevent dangerous people from owning guns.