SCOPE MEMO OF Opposition TO A11148 Simon legislation
A. 11148 Simon
Establishes extreme risk protection orders as a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.
PURPOSEThis legislation would establish extreme risk protection orders that would deny due process rights to individuals not accused of a crime. Additionally, school officials, which include but is not limited to school teachers, school guidance counselors, school psychologists, school social workers, school nurses, school administrators or other school personnel required to hold a teaching or administrative license or certificate, and full or part-time compensated school employees required to hold a temporary coaching license or professional coaching certificate.
We oppose this legislation on several key points, first, loss of due process rights for individuals including those who may not be the subject of the order, i.e. parents, legal guardians. Additionally, adding school officials as petitioners can lead to some unintended consequences and a false sense of security. If this proposal becomes law schools could petition the court when they suspect they have a troubled student who is a risk to himself/herself or others, there is no requirement for them to call law enforcement. By the time an order is issued several days have passed and I am sure you understand the potential for tragedy. If school officials truly believe a student poses a threat to him/herself or others it’s prudent if not imperative that they contact law-enforcement immediately. Law enforcement professionals can then investigate make an assessment and take appropriate action. Unlike schools seeking action through the courts, law enforcement can act immediately if they determine immediate action is necessary.
A reality check is needed regarding the involvement of school officials as per this bill. Let us assume that one of them has identified a student (respondent) where there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others. Why would any concerned school official not immediately contact law enforcement? What advantage is gained by that official providing the student with the time to possibly gain access to a firearm? Does anyone truly believe that the extended time spent on this bills requirement to obtain an extreme risk protection order prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun is a better choice than immediately contacting the local police agency?
Consider this situation encountered by a SCOPE Director while he was teaching in a Rochester area high school. A student was involved in an altercation and declared that he was leaving the building and would return with a gun. The high school principal was aware of the students threat yet refused to contact law enforcement. The principal also refused to lock the exterior doors and instead instructed several male teachers to guard the entrances with instructions to call the main office if the student returned. Fortunately, the situation ended well but a crucial error in judgment cost the principal his job.
This legislation if passed could have unintended consequences and end up posing more risk to students, school employees, and teachers, by leaving law-enforcement out of the initial process and thus delaying or preventing much-needed police intervention. Putting it bluntly, this legislation is dangerous and invites a delayed and inadequate response to a potentially dangerous situation.
School officials have a long history of irrational judgment when it comes to firearm issues, and what defines a serious concern. Just a few years ago a child was suspended from school for eating a Pop-Tart into the shape of a gun, also a fifth-grade girl in Philadelphia was suspended for having a piece of paper that was torn into the shape of a gun. Would schools seek protection orders against those students? Schools, teachers, and administrators are not always rational thinkers when it comes to these issues. There are countless stories like those I have mentioned here.
What's more, you might presume the subject, or the respondent of the extreme risk protection order would be the student but then again what is the point of an extreme risk protection order for a child under 18 years of age since they can’t legally own or possess firearms or long guns anyway? The answer is the parent or legal guardian then becomes the subject or respondent of the order. We realize there can be legitimate reason for an immediate seizure of someone’s firearms, but that determination is best left to law-enforcement professionals and the courts with consideration of due process rights under the 5th and 14th Amendments. Especially in a situation where firearms may be confiscated from someone who has not committed a crime or even been charged with a crime.
Finally, when the extreme risk protection order is issued a notice will be sent to the FBI and subsequently, the parent(s) or legal guardian, not the student will be added to the NICS system. A law-abiding parent who has done nothing wrong and may very well have his or her firearms safely secured in their home will be subject to having their firearms confiscated and prohibited from purchasing future firearms without any due process, under this proposal. A clear violation of not only the 2nd Amendment but also the 5th and 14th Amendments as well.
Again, we recognize the need to identify troubled kids and to respond to someone who does present a danger to themselves and others, however, excluding law-enforcement from the process as this proposal is likely to do could end up having very dangerous consequences. The means to deal with these events already exists in state law, schools just need to pick up the phone and call the police.
Regarding the addition of family and household members, while we understand there may be circumstances requiring such an order, we also know there are situations where false accusations are made and laws like this are used as weapons in a divorce or domestic relationships. Such as the case, if the Senate considers this proposal it should be amended to include penalties for malicious and falsely accusing a respondent.