RichmondLiberty.org

NOTE: UNTIL I LEARN A BETTER WAY TO DO IT, ALL URLS IN THIS POSTING ARE EDITED BY ADDING A SPACE AFTER "http://". YOU CANNOT CLICK ON THESE. INSTEAD, COPY THE URL INTO THE ADDRESS BAR OF YOUR BROWSER, THEN DELETE THE SPACE, AND ONLY THEN CLICK ON "GO". SORRY, BUT I'M NEW TO THIS SOFTWARE. -- ROY

File GA08-01-18
General Assembly, January 18th, 200

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ADDITION: In my previous report, "GA08-01-16", I described HB491, from Delegate Amundson, which would have broadened the definition of indecent exposure to include being nude in any place, including one's own home, where others may see you. What I somehow failed to include was the fact that the subcommittee decided that the bill was too flawed to fix in the time available, and so it was "gently laid upon the table". That is to say, they didn't kill it outright, but unless someone takes the time and effort to not only rewrite the bill but also fix the underlying problems that are apparent on a close reading of the existing statute, it will stay on the table through the end of the session. As the law exists now, it would apply -- should anyone care to prosecute -- to being naked in your home in the presence of others, including family members, or being naked in a shower room or locker room in school or gym settings. Sounds unbelievable, but look at the statute that's on the books now: .

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This morning at 9:00 am the House Militia and Police Committee met to consider, among other things, closing the "gun show loophole". The so-called "loophole" consists of the fact that -- amazingly enough -- the same laws apply at gun shows that apply everywhere else. Under Virginia and Federal law, if you are a firearms dealer, you have to get a license, and you have to run a background check on any person who wants to buy a firearm. If you just happen to own a firearm, and want to sell it or trade it, you don't.

Since this report is now going to a number of people who may not be familiar with many of these issues, I'll illustrate. If I go to the store to buy a .22 calibre rifle, the store would do a background check on me before selling it to me. On the other hand, if I wanted to buy my grandfather's .22 rifle from my cousin, he wouldn't need to do the check. That's the way they wrote the laws when Virginia established the first-in-the-nation Instant Background Check law, and that's the way they remain. It seems to work; Federal statistics show that fewer than one percent of guns used in crimes were bought at gun shows. The laws apply at the gun shows, just as they do everywhere else.

We hear repeatedly that people buy guns at gun shows from "unlicensed dealers". Now, I've been to a few gun shows here in Richmond, and I didn't see any such thing. I saw a lot of vendors at gun shows who probably weren't Federally licensed, but that was all right because they weren't selling guns -- they were selling books, or flags, or belt buckles, or tools, or such. I saw, at each gun show, two or three people carrying rifles or shotguns with a little sign sticking out of the muzzle saying "For Sale", but what I have never seen is anyone "selling guns out of their trunk in the parking lot", or anything similar. Can't say that that hasn't ever happened somewhere, but I've never seen it at the few shows that I've attended. What I have seen is a half-dozen or more uniformed police officers helping with security, and more people identified by someone or other as being undercover officers from various local, state and Federal agencies. Since I've also never heard of anyone being busted at a gun show for having failed to get a Federal license before dealing in firearms, I have to suspect that this is something that doesn't much happen.

Anyway, according to Philip Van Cleave of Virginia Citizens' Defense League, both of the "loophole" bills died in committee this morning, in spite of some rather frantic parlimentary maneuvering. Details at the VCDL website,
http:// www.VCDL.org , if you're interested.

The two bills were:
HB592, Marsden, Criminal history record information; required for transfer of firearms.
and
HB745, Caputo, Criminal history record information; adds definition of firearms show vendor.
The summary of the two bills is identical:
Transfer of firearms; criminal records check; penalties. Adds a definition of "firearms show vendor" and requires that a criminal history record information check be performed on the prospective transferee before the vendor may transfer firearms at a gun show. Under current law, only licensed dealers must obtain such a check. The bill also adds a definition of "promoter" and requires that the promoter of a gun show provide vendors with access to licensed dealers who will conduct the criminal background check.

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The House Courts of Justice Subcommittee on Mental Health met about 1 pm Friday afternoon. They're to consider all the bills that deal with standards for involuntary committment, and/or any resultant effect on ability to own firearms.

There are 23 bills on the docket, many of them dealing with the same few topics. They're intending to consider bills on various topics as groups, and incorporate the best parts of each into a single bill for each topic. Some bills will have to separated from this scheme.
There's been a lot of work done on these topics since the Virginia Tech murders, which resulted after a disturbed youth did not receive adequate treatment, even after legally being ordered to do so. He was also able to legally buy two firearms from licensed dealers, in spite of that.

[It's worth noting here, IMHO, that the members of the subcommittee are sitting here and working, for what promises to be a session that will last for several hours at least. I'm certain that they would vastly prefer to be doing what most other members are doing at this moment, which is heading back home for the weekend. When I make remarks that fail to show deference and respect toward our Beloved Leaders, which I will of course continue to do when I feel it to be appropriate, please bear in mind that Delegates Bell, Albo, Fralin, Gilbert, Toscano, and Watts were willing to work late to do it right. Of course, they're hardly the only ones; House Courts has an immense workload every year, and all too often works to midnight and beyond.]

HB584, Marsden, was dropped from docket as not being appropriate for the narrow focus of this subcommittee.

First discussion: Emergency custody orders, temporary detention orders, and involuntary commitment; criteria.
Substitute version of HB559, Bell, is the vehicle here. The substitute is the product of commission and study group discussion and research by the AG's staff, much of it recent. It is, we are informed, not the product of consensus; there was considerable debate involved.

Generally replaces present language "imminent danger to himself or others" with a new standard: "there exists a substantial liklihood that as a result of that mental illness the defendant will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior or any other relevant information or (b) suffer serious harm due to substantial deterioration of his capacity to protect himself from harm or to provide for his basic human needs".

Prolonged discussion of various parts of the bill, and what differences, if any, should be applied to people already in custody awaiting trial or after being convicted, compared to citizens in general. I'm not going to be able to follow all of this and record it here. (Bigger room than usual, both sound and vision are worse.) I'll have better information when the much-amended bill is considered before the full Courts committee.

Discussion on where, or whether, to put language requiring action in jails. Testimony of financial inpact on small jails, difficulty of getting competent professionals to the site in many areas of the state.
"Physical harm" vs. "bodily harm" vs. just "harm"?
Financial competence proper basis for declaring someone in need of care against their will? Sticky can of worms THAT would be -- you don't like Granny spending so much of what you want to inherit on cat food and the church, so just have her declared crazy!
Several amendments to make the bill better. Will need to see them at next full Committee meeting to detail them.
This bill will incorporate HB1059 and others.
Recommended for full Committee.

Second discussion, about 1:55 pm: What evidence needed for emergency custody orders and temporary detention orders.
Substitute version of HB1144 is vehicle; language from HB737 and HB1139 incorporated into it.

A preliminary hearing would allow detention for 48 hours until a more deliberative proceedings can be held if the magistrate is convinced that an Temporary Detention Order is justified.
Hearsay evidence permitted at preliminary hearing by this bill. Discussion on this matter, contrast with later hearings.
Discussion on need for counsel for subject; again, at which hearings?
Possibly deal with some other matters first, since appeals and other hearings may affect what should be done here.
Technical amendments offered; substantive amendment made to tighten requirements for later hearing.
Recommended for full Committee.

Third hearing, 2:30: substitute version of HB560, representatives of Community Services Board and treating physician.
Allows examiner and physician to be present electronically where being present in person isn't practical, rather than delaying procedures for hours or even days in some areas.
Discussion on possible abuse of this.
Requires followup for outpatient treatment referral, to make sure that the treatment ordered was actually delivered.
Recommended for full Committee (unless I mis-understood).

Fourth hearing, 2:45 or so, is HB1138, Fralin. This bill is not on the docket available before the meeting. The bill replaces the present law, allowing a person who is petitioning to have someone committed to have an attorney, by a requirement that the Commonwealth's Attorney provide an attorney. (Existing law already makes sure that the subject of the hearing will have an attorney.)
Gilbert points out that the CA's office isn't set up to do that, and should not be representing a private citizen. Suggestion made to keep present law, but adding a right for CA to participate representing the Commonwealth if he feels that this is needed. Agreement from most on subcommittee. Alliance for Mental Health suggests that this is a further step toward crimnalizing mental illness. May delay hearing if counsel needs to be appointed -- and who would make decision.
Considerable discussion on these different approaches; VA. Tech panel report did not decide, merely said that there should always be counsel available.
Chair proposes to add Gilbert amendment to HB499.

Fralin proposes restoring present language, then adding new section giving Commonwealth standing to participate in hearing and provide evidence. Amendment fails.

Bill recommended NOT to pass.

3:12pm, substitute version of HB582, Fralin, deals with inpatient treatment of minors. Lengthens from 72 to 96 hours, and from 48 to 96 hours.
Lengthens from 48 to 96 hours, plus existing allowances for weekends and holidays. Watts raises point that this seems excessive. That part deleted from bill.
Recommended for full Committee.

3:19, HB 583, Marsden, would allow a single extension of the duration of an emergency custody order, from four hours to an additional four hours. He offers amendment to it, which would have the effect of doubling the allowable extension from 4 hours to 8 hours, or a total of twelve hours.
This would not be a routine custom, or so we are assured.
Extended discussion of this point, and how urgently these matters are regarded by Community Services Board representatives. Do they come as soon as they're called, or stop for donuts on the way? Can we allow more than 4 hours where that's needed to do a decent job of evaluating patient, without also encouraging even more delay?
Amendment made.
Bill recommended for full Committee.
WHOOPS! Problems are caused by present delays in completing evaluations. Police officers may (often???) have to hang around hospital or facility for four to seven hours, merely watching the patient.
Bill reconsidered. Amendment offered by Delegate Watts. Consensus that it's too complex to do right now, but she'll work on it and offer it to full Committee. Bill restored to original form, and recommended for the full Commttee.

3:35pm, HB1324, sharing mental health records.
Would allow sharing with law enforcement as well as with treatment providers. Toscano points out that though his name is on it, he has some concerns.
This raises serious privacy concerns. AG's office says this is needed for safe transport and detention of subject. Language doesn't clearly specify that information can only be used for those purposes.
Alex Gulotta of (Charlottesville) Legal Aid Justice Center speaks to this concern, warning that people may well refuse to disclose needed info to the physicians because they fear that it would be disclosed to police. Recommends tightening language.
Amendment made to tighten the wording. Not nearly good enough, IMHO. Discussion of killing bill. Decision to recommend further amendment at Committee level.
Recommended for full Committee.

3:52, HB576, Watts, more on sharing medical records. This specifically targets HIPPA, which otherwise prohibits release of medical information.
Gulotta repeated his objection, and I also testified by suggesting a way to meet requirements of both sides: instead of allowing "release of medical records", medical personnel should be allowed to verbally tell law enforcement of any information they may need in order to properly transport and/or detain subject. This gives them info they need, but (being hearsay) cannot be used to bring charges against subject. This in turn should make people more likely to be honest with doctors, so the system would work better all around.
Agreement in principle to offer and push for that amendment in full committee. I'll be crafting it this weekend.
Recommended for full Committee and work in full committee.

4:01 HB708, Janis, admission of TDOs as evidence.
This would ensure that the review of and issuance of a temporary detention order are admissable as evidence. The intent is to make sure that they are reported in any later attempt to purchase firearms or prosecution for lying in background checks.
Technical amendment made.
Recommended for full Committee.

4:11, HB815. Another substitute. Incorporates HB741, and HB835, and HB1517.
Would prohibit anyone who's ever been involuntarily committed, or ordered to outpatient treatment, or "voluntarily" agreed to admission as a result of a TDO hearing from owning a firearm. This is a broader net than present law, which covers merely people who are involuntarily committed.
The bill also changes the length of the ban. Present law bans gun possession while the subject is committed. This bill would leave the ban in place for life, unless the subject succeeds in convincing his local circuit court judge to lift it. The judge doesn't have to do so; it would be entirely at the judge's discretion.
This wasn't a bad standard when applied to people who were confined to mental institutions against their will, but when the ban is extended cover people who had to "have outpatient therapy" (i.e., they had to talk to a shrink for a while), and the ban lasts indefinitely instead of just while the subject is in need of treatment, then I think that the burden of showing that the ban should not be lifted should be on the Commonwealth.
The bill was recommended for full Committee without any opportunity for adverse testimony. (Sometimes this happens, and it's usually just a mistake, and embarrassing all around.)
A speaker whom I didn't know spoke for an amendment to the bill, and then both Philip Van Cleave and I spoke against parts of it.
We were reassured that an seemingly vaugue section was actually all right, and had already succeeded in getting language in another section tightened up, but We were unable, before the subcommittee, to get the "burden-of-proof" change.
We expect a fuller hearing before the full Committee, where the bill will next be heard.

4:38pm, HB938, Gilbert, gives the person asking that someone be committed the right to appeal a decision not to issue an order.
Several problems; lawyer for Virginia Supreme Court says technical problem with wording line 33 as to who Commonwealth's Attorney represents.
Important question: the general rule is that the execution of a judicial decision is stayed once an appeal is granted. Since in this case the decision would be NOT to detain an individual, would granting an appeal mean that the person WOULD be detained for weeks or moths awaiting the outcome? If not, how do you fix the language?
Recommended for full Committee, but will need further work in front of full Committee.

4:59pm, HB939, Gilbert, release from involuntary committment. This allows someone who's committed involuntarily to petition for a hearing for either release or transfer to outpatient status after 30 days. Only one such petition could be granted.
Sorry, but had to break off to speak with a Committee member while this was being considered, and did not make a note of what decision was made, and can't remember with all the other items. Will report more when the full Committee meets.

5:06pm HB480, Brinks' bill is referred back to the full Committee without action.

Chairman's review and summary:
In the past four hours, we've made sweeping changes in mental health laws . . . we've increased the time that people can be detained, and dealt with the evidence and procedures, and staff responses, and . . . [lotza other things]. This is supposed to be our final meeting considering these, so that there'll be time for the full committee and the House to deal with them properly.

We still have one bill to cover: HB499, Hamilton. Do we want to do this this evening, or have another meeting? Are we too tired to do it justice? Warning, big bill. Includes three pages of new language that is going to have to be reviewed sentence by sentence.

Meanwhile, Delegate Fralin asked that his bill be laid on the table, rather than killed outright. Done.

Delegate Albo's HB267 was un-incorporated from HB1144, at his request. Instead, he asks that all of his proposed new language be stricken, and replaced with language allowing petitioner to have a lawyer from the list of acceptable ones when needed. This was approved in concept, and he will have appropriate language ready for the full committee.
Recommended for full Committee.

After some more discussion and consultation, the subcommittee decided that it would be best to meet one more time, Monday evening at seven p.m., to consider HB499.

Details on that bill are:
HB499, Hamilton: Involuntary commitment; establishes new standard for outpatient commitment.

Involuntary commitment. Establishes a new standard for involuntary outpatient commitment authorizing involuntary commitment where the person has a mental illness and there exists a substantial likelihood that, as a result of mental illness, the person will, in the near future (i) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm, or (ii) suffer serious harm due to substantial deterioration of his capacity to protect himself from harm or to provide for his basic human needs. This bill also requires a provider of mental health services to disclose records to a magistrate, the court, the person's attorney, the examiner, a community services board (CSB) or behavioral health authority, or law-enforcement officer; authorizes a single four-hour extension of an emergency custody order; provides that a person under a temporary detention order may be released prior to 48 hours after the order is executed if the person does not pose a danger to himself or others; specifies records and evidence that must be reviewed prior to an independent examination; requires that a representative of the CSB preparing the preadmission screening report attend each commitment hearing; establishes additional requirements for outpatient commitment; requires an outpatient treatment plan be filed with the outpatient order; and clarifies the monitoring duty of the community services board.

The subcommittee adjourned, finally.

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The Assembly WILL be meeting on Monday the 21st, Martin Luther King day. Monday is also Lobby Day for groups for and against guns, and for civil rights, and unless I'm mistaken for at least a couple of other groups. Should be fun, though even more confusing than usual.

Next relevant scheduled meetings are on Monday:

8:30 am -- Senate Courts of Justice; Senate Room A, General Assembly Building -- another "loophole" bill.
http:// leg1.state.va.us/cgi-bin/legp504.exe?081+doc+S0310121

Both House and Senate convene at noon.

After noon -- House Courts of Justice; House Room C, General Assembly Building - 1/2 hour after adjournment -- Numerous bills.
http:// leg1.state.va.us/cgi-bin/legp504.exe?081+doc+H0810121

after noon -- House Courts of Justice - Criminal Subcommittee; House Room C, General Assembly Building - Immediately upon adjournment of full Courts -- More crimes; sex and violence
http:// leg1.state.va.us/cgi-bin/legp504.exe?081+sub+H080020121

7:00 pm -- Senate Education and Health Special Subcommittee on Public Smoking Legislation; Senate Room B, General Assembly Building - Public Hearing on Proposed Public Smoking Legislation
http:// leg1.state.va.us/cgi-bin/legp504.exe?081+sub+S040050121

7:00 pm -- House Courts of Justice - Mental Health Commitment Subcommittee; House Room C, General Assembly Building
http:// leg1.state.va.us/cgi-bin/legp504.exe?081+sub+H080030121

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DETAILS:
To see the summary, text, status, estimated cost, votes, or other details on any bill, go to:
http:// leg1.state.va.us/ . Click on:
“Bills & Resolutions ­ status of individual bills and related information”.
At the text-entry block, enter the bill and type just as I have it listed above. (Use “SB921”, not “S.B. 921”, for example.)

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REMINDER:
http:// leg1.state.va.us/
and
http:// legis.state.va.us/
These are the two websites where you can access nearly anything you want to know about practically anything related to the General Assembly. Use them!
end
- - Roy B. Scherer

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"No man's life, liberty, or property
are safe while the Legislature is in session."
1 Tucker 248
N.Y. Surr. 1866
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