You are here: Home / News / Sen. Steve Smith's SB 1519, Strike Everything passes 4-3-1

Sen. Steve Smith's SB 1519, Strike Everything passes 4-3-1

Yesterday was a 'fun' day at the Capitol. The hearing was held in the Senate Commerce & Public Safety Committee. The Strike Everything narrowly passed, 4-3-1. The no vote was Senate Petersen (R-Gilbert). SB 1519 will not head to Rules where it will be 'rubber stamped' as constitutional and true to form, then to the Committee of the Whole where it may be amendment again, then on to the floor for a Third Read vote. So there is still time to write or call to express your views.

Here was what we presented to the C&PS committee at yesterday's hearing. It is a matter of the public record. Given only two minutes, we did not have time to cover most of our objections:

Dear Senate Commerce & Public Safety Committee members:

Chairman Steve Smith,

Vice-Chairman Warren Petersen,

Sonny Borrelli,

Sean Bowie,

Karen Fann,

David C. Farnsworth, ­­

Robert Meza,

Catherine Miranda

 

April 19, 2018

 

FOR THE SENATE COMMERCE & PUBLIC SAFETY COMMITTEE RECORD

 

SB 1519, Strike Everything Amendment

Let me begin by stating I find it reprehensible that this monstrosity is being considered for passage on Patriot’s Day.

After reading the sections concerning the Severe Threat Orders of Protection, or Gun Violence Restraining Order as The Giffords Group prefers to refer to them, we find this more about seizing individuals and their firearms than it is about identifying and treating those with severe mental illness, which in itself is unconstitutionally vague. The Veterans Administration considers depression a SEVERE MENTAL ILLNESS.

Very recently, in New York, Republicans in the legislature successfully defeated an attempt to enact Gun Violence Restraining Orders, while in Arizona REPUBLICANS ARE TRYING THEIR HARDEST TO ENACT THEM!

We agree privacy is of the utmost importance in most instances; however, there are sections in this bill where you give short-shrift to privacy while in other parts, cloak information in secrecy when the information should be public.

Adding SRO’s is a laudable idea; however, they only serve as the first line of defense against an attack. However, they are in uniform and will be targeted first. Should the SRO fail to stop the assailant(s), staff, teachers and students will be ‘fish in a barrel’ until additional law enforcement backup arrives.

We strongly encourage you incorporate in to this plan standards and methods for school staff and/or teachers who wish to serve as that LAST LINE OF DEFENSE to do so. Current law allows school districts to authorize armed staff and teachers; however, there is no system in place for the staff and/or teachers to receive training.

You will find below some of our comments/concerns about provisions in SB 1591, Strike Everything Amendment. Our comments do not cover every concern, but they do highlight some of the most glaring flaws.
We recommend this body repeal all sections concerning Gun Violence Restraining Orders, or, as Governor Ducey and Senator Smith prefer to call them, Severe Threat Orders of Protection. Apparently that term was tested for general acceptance by the public. It definitely sounds better than Gun Violence Restraining Order!

Here are a few of our concerns:

8-208(I), Page 4, Lines 12 thru 21 – The release of the STOP is in violation of HIPPA. Moreover, releasing the STOP to all listed is a sure bet it will be disclosed to unauthorized persons. The STOP should be protected. However, if it is necessary to protect certain individuals from the respondent, a separate restraining order could be issued that is not associated with the STOP. This will help protect the respondents Personally Identifiable Health Information.

12-1881(1)

  1. Page 4, Line 28 & 29: Remote observations by interactive audiovisual media, or diagnosing, should be prohibited. An evaluator cannot properly evaluate the respondent remotely through audiovisual means. An evaluator must maintain eye contact as well as evaluate body language in order to make an important diagnosis in which the respondents rights are dependent.
  2. Page 5, lines 1 thru 6: We believe those who are approved to evaluate the respondent is too broad. After all, we are discussing revoking ones constitutionally guaranteed right. Only licensed psychiatrists or their equivalent should evaluate the respondent.

12-1882

  1. (A), Page 6, Lines 3 thru 11 – An ex parte order, as in this case, is a legal proceeding brought by one person in the absence of and without representation or notification of the respondent. In this instance, an ex parte hearing is unconstitutional on its face.

The responded will be seized, or more appropriately, kidnapped, taken to an approved evaluation facility to be evaluated without the ability to defend themselves or have a representative to raise their objections.

Need we remind you that the fundamental purpose of this legislative body is to protect individual rights (Arizona Constitution, Art. II, Sec. 2)?

2. (B)(3), Page 6, Lines 28 thru 30 – “Attempted act of violence” is unconstitutionally vague. It must be specifically defined. It is neither defined in 12-1881 nor is reference made to another statute where its definition may be found.

We raise this issue because “attempted” could mean anything from a specific act in preparation for a violent act, such as making bombs, to writing thoughts in a diary with no intention to act.

3. (B)(5), Page 7, Lines 5 & 6 – Prior evaluations should not be a factor in this proceeding. The ex parte hearing is about the current mental condition of the respondent.

4. (C)(6), Page 7, Lines 26 thru 29 – Insert the word “felony” on line 26, after ‘A’ and before ‘conviction.’

By including ANY firearm related offenses, something as simple as a constitutional challenge to a Tucson City Ordinance, where the respondent lost the challenge, could be included as evidence against the respondent. Felony offenses are the only offenses that should be considered.

12-1883

  1. (A), Page 8, Line 6 – A ‘Beyond a Reasonable Doubt,’ not “Clear and Convincing” should be required by the petitioner.

In States where these restraining orders have been implemented ‘Clear and Convincing’ standards have either not been followed or it they have been amended to include an even weaker standard.

Herein lays the danger. We call it law-creep (think military mission-creep). That is what has happened in California. Surely you do not want history to remember you as the Arizona legislator who turned our State in to California-lite!

2. (B), Page 8, Lines 25 thru 30 – First, the hearing is after the STOP is issued by the court (ex parte) which does not afford the respondent the ability to prove to the court they are not mentally ill prior to being restrained and having their firearms and ammunition seized, etc.

Moreover, it is the respondent’s responsibility to research, hire and pay for an attorney without committing any crime in a short period of time. Clearly this is unconstitutional on its face.

3. (C), Page 9, Lines 3 thru 8 – The respondent is served, transported and committed to an evaluation facility BEFORE any hearing where the respondent is present, with or without representation, takes place. The respondent is being seized, or let’s call it what it is, KIDNAPPED, which is no different than treating the respondent as a criminal without committing any crime.

4. (D), Page 9, Lines 19 & 20 – Again, “Clear and Convincing” should NEVER be the standard when a person is being seized without committing any crime, deported to a mental facility for evaluation, and in all likelihood, against their will. At the very least, a “Beyond a Reasonable Doubt” standard should be required.

12-1884(E), Page 12, Line 32 and Page 13, Line 1 – The standard to deport the respondent to a mental institution for evaluation, seizing them, as well as revoking their right to bear and keep arms should NEVER be ordered by “Clear and Convincing” evidence, but rather Beyond a Reasonable Doubt.

12-1885

  1. (A), Page 13, Lines 18 & 19 – The standard to request an extension, especially considering they -have been to the evaluation facility and evaluated, should never be “Clear and Convincing.”
  2. (B), Page 13, Line 26 – A judge should never use the standard of “Clear and Convincing” when an individual’s constitutionally guaranteed rights are at stake.

Moreover, when evaluating the presented evidence, the court should apply a strict scrutiny level of review. This standard of review should be stated in the bills language.

12-1887, Page 14, Lines 11 & 12 – Juvenile records should remain under a strict level of privacy, even if a STOP is approved by the court. When the STOP is quashed or expires, the record should be sealed.

12-1888

  1. (B), Page 14, Lines 19 thru 24 – Everyone in the household who owns firearms, other than the respondent, must ‘Lock Up Their Safety.’
  2. (D), Page 15, Lines 1 thru 4 – There is a disconnect with this provision and its alleged purpose. If the threat is severe and the respondent poses a severe threat to himself or others, it does not make sense to allow 24-hours to turn in their firearms. Which is it, is the treat severe and immediate or not?
  3. (F), Page 15, Lines 23 & 24 – The condition of the firearm(s) must be documented.  A conflict could occur if a firearm or firearms in law enforcements custody should become damaged. This does occur.
  4. (H), Page 15, lines 1 thru 6 – This may very well be in violation of federal law. See ATF Form 4473, Question 11(f) and its exceptions. If committed for evaluation, the respondent MAY be a prohibited possessor under federal law. Each situation will be different and it is difficult to say yes or no with any sense of certainty.
  5. (K) (1) & (2), Page 1, Lines 17 & 20 – This reinforces the ‘LOCK UP YOUR SAFETY’ provision as previously identified. Firearm owners in the household, other than the respondent, will have no choice but to secure their firearms in some sort of safe so as to avoid any possibility of prosecution of a Class 4 felony and becoming a prohibited possessor themselves.

12-1889 – Add: 6. THE NUMBER OF FIREARMS SEIZED, THE MAKE, MODEL, CALIBER AND SERIAL NUMBER OF EACH.

15-154(A), Page 24, Lines 28 thru 30 – These records should be public. A parent(s) have a right to know if the school their child is attending is meeting minimum safety standards. Moreover, if they do not have access to the plans, improvements cannot be suggested by the parents themselves.

36-519(D), Page 54, Lines 2 & 3 – Change “significant” to “severe.” We are not sure why you lowered the standard in this instance. We hope it was oversight and not a ‘sleight of hand.’

41-1711(L), Page 57, Lines 14 & 15 – Why would hide this information? This information is crucial to parents. They have a right to know. This is akin to college campuses hiding their crime statistics, where parents and the prospective attendees believe the campus is safe when it is in fact not safe. Neither a court order should be required nor should this information be buried from the public view.

We’re not sure why this legislative body is inclined to cloak information in secrecy.

Respectfully submitted,