Posted on 11/21/2013 6:19:59 PM PST by 45Auto
SB-127: Good Law or Tyranny?
Gentlemen:
As a life long member of NRA I would not be so quick to show full support for the provisions of California's recently enacted SB 127. The audit of the APPS system does not do a lot to assuage fear that the law will be abused by the DOJ. For example, it is not at all clear that the provision of "communicating of a serious threat of physical violence to a licensed psychotherapist by a person, be reported to local law enforcement, within 24 hours" will work in practice. Does this encompass ALL visits to a licensed psychoterapist in a private doctor-patient setting or is it limited to those poor souls who have been committed either involuntarily (such as by a 5150 charge) or by voluntarily admitting oneself to a facility for therapy? Can it be that a simple diagnosis of depression by a "licensed psychoterapist" could lead to a person being put onto the APPS list without due process of law and thereby lose a Constitutional right? This seems like what the lawyers call "hearsay". If a doctor has the authority to do this without a court hearing, then justice is not served and due process is violated. A lawsuit under these circumstances seems inevitable.
The provisions of SB 127 are murky, indeed. The other potential problem with this whole business is that a private consultation between pschotherapist and patient is covered under the federal HIPPA law that prevents the disclosure of a privileged communication. I do not believe that a licensed psychotherapist who violates HIPPA would be exempt from a civil rights violation lawsuit as well as a civil suit for damages. It also seems to me that any law enforcement agency operating solely on the word of a "licensed pschotherapist" (instead of a properly court-issued warrant subsequent to a hearing) also invites not only a charge of civil rights violations against the state of California and the DOJ in particular, but also opens the way to multiple level lawsuits.
It is also not clear as to what types of minor violations commonly called "misdemeanors" (other than domestic abuse restraining orders or conviction for domestic violence) could lead to an inclusion on the APPS list. Is there a comprehensive list of such minor crimes that would definetely lead to inclusion on the APPS? These things need to be defined so that people will know what to expect for certain actions on their part. Unless there is such a list, SB 127 is "unconstitutionaly vague" and should be struck down by the courts. Could a simple DUI arrest lead to inclusion on the APPS?
Lastly, the tactics used by the DOJ enforcement groups to accost people who are on the APPS list are shoddy and constitute bad police work at best. It seems that the courts will rarely issue actual search warrants based on hearsay information by "licensed pschotherapists"; thus the DOJ officers try to intimidate people into granting un-warranted searches. This is an outrage. There is no substitute for proper police work based on legally-issued search warrants, backed by court order. If legitimate warrants cannot be issued because there is no preponderance of evidence of wrongdoing, then what the DOJ is doing is illegal at best and borders on the tyrannical at worst.
There are also issues related to other Constitutional provisions in the Bill of Rights, namely, the violation of the Second Amendment, the Fourth Amendment "unreasonable search and seizure not supported by warrant", and the the Fifth Amendment "Just Compensation" clause. The taking of private property by fiat without just compensation is enough to mark SB 127 as unconstitutional.
Again, I urge Gun Owners of California not to be too hasty to give up the Constitutional rights of potentially innocent people based on the very murky SB 127. A the very least you should be demanding that clear definitions of offenses that will lead to inclusion of names in the APPS be established so that abuses of the law can be minimized.
Yours Constitutionally, 45Auto
Any time a firearms-related thread is created on FreeRepublic, please be sure to add the "banglist" keyword to it so that interested FReepers don't miss it. Just a suggestion.
Let Freedom Ring,
It is certainly true that there are some people who would be dangerous if they had a gun but are harmless without one. Such people should only be considered harmless, however, if they are disinclined to acquire a gun. The only people who a gun ban would affect would be those who are sufficiently dangerous that they shouldn't be allowed in public in the first place.
Another thing I wish mental health professionals would be more emphatic about is that someone with mental health issues who is working with a doctor to treat them is apt to be far less dangerous than someone with mental health issues who avoids treatment for fear of having treatment records used against him. Things that increase the perceived possibility that patient treatment records may be used in ways detrimental to the patients in question will increase the dangers posed by mentally ill individuals who aren't seeking treatment and would thus be "below the radar"; restricting the rights of those who are seeking treatment won't reduce the danger posed by those who aren't.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.