Saturday, July 21, 2007

HR 2640 & Horatio Miller

Those of you who receive updates from Gun Owners of America may recall this press release of July 10, 2007:
So it's not surprising that, having skipped much of the legislative process, there are still a lot of unanswered questions regarding HR 2640. In fact, these questions have only been magnified after an offhanded, tongue-in-cheek remark made at the Harrisburg Community College in Pennsylvania cost a man his gun rights for life in that state.

Newspapers last month reported that Horatio Miller allegedly said that it could be "worse than Virginia Tech" if someone broke into his car, because there were guns there. It is not clear whether he was making a threat against a person who might burglarize his car, or if he was simply saying that the bad guy could do a lot of damage because of the guns he would find there. Nevertheless, Miller was arrested, but not charged with anything.

The comment Miller made was certainly not the smartest thing to say. But realize, we don't incarcerate people for making stupid statements in this country -- at least not yet. Miller was a concealed carry permit holder who, as such, had passed vigorous background checks into his past history. Miller does not have a criminal record.

Regardless, the county district attorney did not like what he had said, so, according to the Harrisburg Patriot News on June 20, "I contacted the sheriff and had his license to carry a firearm revoked. And I asked police to commit him under Section 302 of the mental health procedures act and that was done. He is now ineligible to possess firearms [for life] because he was committed involuntarily."
I don't know whether Miller was improperly locked up or not. This gun rights activist suggests that there might have been more in Miller's past than just one foolish remark. It is clear that the district attorney in question needs to hire an lawyer (or someone who knows how to read) before shooting off his mouth.

As I have previously posted, federal law and regulation defines pretty narrowly what constitutes a person who is "mentally defective" (meaning retarded or dangerously mentally ill). It requires a due process adjudication--and Section 302 of the Pennsylvania Mental Health Procedures Act does not qualify:
§ 7302. Involuntary emergency examination and treatment authorized by a physician--not to exceed one hundred twenty hours

(a) Application for Examination.--Emergency examination may be undertaken at a treatment facility upon the certification of a physician stating the need for such examination; or upon a warrant issued by the county administrator authorizing such examination; or without a warrant upon application by a physician or other authorized person who has personally observed conduct showing the need for such examination.

(1) Warrant for Emergency Examination.--Upon written application by a physician or other responsible party setting forth facts constituting reasonable grounds to believe a person is severely mentally disabled and in need of immediate treatment, the county administrator may issue a warrant requiring a person authorized by him, or any peace officer, to take such person to the facility specified in the warrant.

(2) Emergency Examination Without a Warrant.--Upon personal observation of the conduct of a person constituting reasonable grounds to believe that he is severely mentally disabled and in need of immediate treatment, and physician or peace officer, or anyone authorized by the county administrator may take such person to an approved facility for an emergency examination. Upon arrival, he shall make a written statement setting forth the grounds for believing the person to be in need of such examination.

(b) Examination and Determination of Need for Emergency Treatment.--A person taken to a facility shall be examined by a physician within two hours of arrival in order to determine if the person is severely mentally disabled within the meaning of section 301 and in need of immediate treatment. If it is determined that the person is severely mentally disabled and in need of emergency treatment, treatment shall be begun immediately. If the physician does not so find, or if at any time it appears there is no longer a need for immediate treatment, the person shall be discharged and returned to such place as he may reasonably direct. The physician shall make a record of the examination and his findings. In no event shall a person be accepted for involuntary emergency treatment if a previous application was granted for such treatment and the new application is not based on behavior occurring after the earlier application.

(c) Notification of Rights at Emergency Examination.--Upon arrival at the facility, the person shall be informed of the reasons for emergency examination and of his right to communicate immediately with others. He shall be given reasonable use of the telephone. He shall be requested to furnish the names of parties whom he may want notified of his custody and kept informed of his status. The county administrator or the director of the facility shall:

(1) give notice to such parties of the whereabouts and status of the person, how and when he may be contacted and visited, and how they may obtain information concerning him while he is in inpatient treatment; and

(2) take reasonable steps to assure that while the person is detained, the health and safety needs of any of his dependents are met, and that his personal property and the premises he occupies are secure.

(d) Duration of Emergency Examination and Treatment.--A person who is in treatment pursuant to this section shall be discharged whenever it is determined that he no longer is in need of treatment and in any event within 120 hours, unless within such period:

(1) he is admitted to voluntary treatment pursuant to section 202 of this act; or

(2) a certification for extended involuntary emergency treatment is filed pursuant to section 303 of this act.
There's no adjudication under sec. 302--it's an emergency hold to determine if this person is mentally ill. It does not cause any loss of gun rights under federal law.

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