Gopal Bill To Allow Certain Firearm Seizures Advances

04/16/18 | News

Legislation sponsored by Senator Vin Gopal that would require law enforcement, upon order of the court, to seize a firearm that is in the possession of a person determined by certain licensed health care professionals to be likely to engage in conduct that poses a threat of serious harm to the patient or another person advanced from the Senate Law and Public Safety Committee today.

Under current law, the “duty to warn and protect” is incurred by a healthcare professional if an individual communicates a clear threat of violence to him or herself or a readily identifiable person or circumstances are such it would be reasonable for the professional to believe the patient intends to carry out an act of violence.   A health care professional is defined as a person licensed to practice psychology, psychiatry, medicine, nursing, clinical social work, or marriage and family therapy.

This bill (S-160) would require health care professionals to inform the municipal police department in which the patient resides or the Superintendent of State Police if the patient resides in a municipality that does not have a full-time police department that the “duty to warn and protect” has been incurred, along with the individual’s name and non-clinical identifying information.

“When someone is suffering from a mental disorder serious enough for them to consider harming themselves or others, healthcare providers could be the safety valve needed to not only help the patient cope but to also protect them from the household weapons that could be used for violent crime,” said Senator Gopal.

“By requiring practitioners to inform law enforcement when patients are at risk, we protect the patient, their loved ones and their community from increased suffering at best and from a catastrophic incident at worst.”

The bill would require law enforcement officials to use the provided information to determine if the individual has been issued a firearms purchaser identification card, permit to purchase a handgun, or any other firearm permit or license.  If the patient has been issued such a license and meets one of the criteria listed below, law enforcement may void the permit under this bill and the Superior Court will have the ability to revoke the license and order the patient to surrender firearms to the county prosecutor:

  • has been convicted of any crime;
  • is drug dependent; is a habitual drunkard or alcoholic;
  • has been confined for a mental disorder;
  • suffers from a physical defect or disease which would make it unsafe for the person to handle a firearm;
  • knowingly falsifies any information on the application form for a FPIC or a PPH;
  • refuses to waive statutory or other rights of confidentiality relating to institutional confinement;
  • is subject to a domestic violence court order prohibiting firearms possession; or
  • is named on the Terrorist Watchlist maintained by the FBI.

Additionally, the bill would provide that if the court has probable cause that the patient has failed to surrender all firearms, the court may order a search and removal of the items.  It also allows for a seized firearm that is owned by an individual other than the patient, to be regained by the owner upon submission of a written request to the prosecutor attesting the patient cannot access the gun.

The bill would further provide that a patient’s firearms license or permit could be reinstated if a medical doctor or psychiatrist submits a certificate or other satisfactory proof to the Superior Court that the patient is no longer suffering from a medical disorder that would interfere with the safe handling of firearms.

In 1976, California courts imposed a legal duty on psychotherapists to warn third parties of patients’ threats to their safety in Tarasoff v. The Regents of the University of California. This case triggered passage of “duty to warn” or “duty to protect” laws in almost every state.

New Jersey’s current law allows a health care professional to fulfill their “duty to warn” obligation once incurred through arranging for the patient’s voluntary admission to a qualified psychiatric facility; initiating involuntary commitment procedures to a qualified psychiatric facility; advising local law enforcement of the patient’s threat and the identity of the intended victim; warning the intended victim or, if under 18, their parent or guardian, and warning the parent or guardian of a patient under age 18 who has threatened to commit suicide or self-harm.

Current law also prohibits a FPIC or PPH from being issued only when a person is currently confined for a mental disorder in a hospital or similar institution, is presently a drunkard, or has ever been confined in a hospital or similar institution, unless a medical doctor or psychiatrist produces a certificate the individual is no longer suffering from that disability.

Under this bill, law enforcement could void and potentially revoke licenses and permits from a broader range of patients who are threatening other individuals or themselves.

New York passed a law in 2013 similarly allowing law enforcement to remove firearms owned by patients reported to be likely to be dangerous under the “duty to warn and protect.”  California passed a similar bill in 2016 that would allow law enforcement or family members to seek a “gun violence restraining order” to temporarily suspend firearm ownership, typically for 21 days.  The California courts issued 86 suspensions in 2016.

Approved 5-0, the bill advances to the Senate for consideration.