General Assembly Vote Tracker

HB222(S) – Lethal Violence Protection Orders

Representative Dave Bentz has proven to be an MVP legislator this year.   He is back with yet another important bill, HB222(S), which would allow the Superior Court to issue a lethal violence protection order when a family member or a law enforcement officer can show that the respondent poses a danger to self or others by owning or possessing a firearm. If this bill sounds similar to the Beau Biden Gun Violence Prevention Bill that just passed, there is a reason for that. Whereas the Beau Biden bill allowed mental health professionals to report to authorities anyone who owns guns and is believed to be a potential threat to themselves or others, this new bill, HB222(S) would allow a family member or a law enforcement officer can make that report to authorities.

If the reporting person feels that the gun owner/possessor in question “poses an immediate and present danger of causing physical injury to self or others by controlling, purchasing, owning, possessing, controlling, purchasing, having access to, or receiving a firearm,” then this is considered an emergency request, and such a petition would mandate a hearing be held by the Justice of the Peace Court within 24 hours and would not require the individual in question to be notified.   The standard of proof would be probable cause.

Should the JP Court find probable cause to believe that the gun owner/possessor is an immediate danger to himself and others, then it could immediately order the person to surrender his or guns to the police, and/or it can order that person to not live with anyone who has guns.   The order would last no more than 45 days and would require the next highest court, the Superior Court, to conduct a full hearing within 15 days, with notice to the supposedly dangerous gun owner/possessor, who would be allowed to testify on his own behalf in the Superior Court hearing.  The standard for the Superior Court procedure is clear and convincing evidence, a more substantive requirement than probable cause.

An order granted by the Superior Court would potentially allow a person to store their firearms with someone else rather than law enforcement. Like the Justice of the Peace Court, the Superior Court could bar the individual in question from residing in a home where firearms are accessible.  A Superior Court directive would last one year, although the individual subjected to the decree could apply to have it lifted if that person can prove there is no longer a danger in him or her possessing guns. The order could be continually renewed for a year.

Just judging by their objections and concerns during the debate over the Beau Biden Gun Violence Prevention Act, I can tell that both the ACLU and Republicans are going to have a problem with this aspect of the bill.    The lack of due process at the start, with the non notification to the supposedly dangerous person.  Sure, there is good reason for it, and it is remedied later with a full hearing and process before the Superior Court, but the due process objection still stands.  And then there is this whole Republican complaint that the supposedly dangerous person would be made homeless.  Given their policies towards the homeless in other areas of society, one would think that Republicans would have no problem with that, but it is a problem when it is a gun owner, no matter if he is insane and a danger to others.

But I digress.

There is also a procedure for “nonemergency petitions,” where the petition would be heard in the Superior Court within 15 days of being filed.   As in the second hearing before the Superior Court in the emergency situations, full notice to the accused and a right to be heard are afforded.  But I have trouble imaging what exactly a nonemergency situation would be like when the we are dealing with a gun owner who is a potential threat to himself and others.   If you think that a person may use a gun to kill or harm someone due to whatever stress or mental illness or whatever other condition may be applicable, then that is an emergency.

HB222(S) – Lethal Violence Protection Orders
STATUS – Waiting on a hearing in committee
HISTORY – Placed in House Administration 5/3/18
SPONSORS Bentz, Henry, Townsend, Longhurst, Potter, Baumbach, Bolden, Brady, Kowalko, Mitchell, Osienski, Schwartzkopf

Delaware politics from a liberal, progressive and Democratic perspective. Keep Delaware Blue.

0 comments on “HB222(S) – Lethal Violence Protection Orders

Leave a Reply

%d bloggers like this: