Calling it the best way to prevent mass shootings, Gov. Doug Ducey is renewing his bid to allow judges to take away guns of people believed to be a danger to themselves or others and have them held for mental examination.
“I’m disappointed we haven’t gotten more done on school safety,” the governor told Capitol Media Services, citing additional funding for counselors and school resource officers. “I definitely think more needs to be done.”
That “more” is Ducey’s proposal to allow judges to issue a Severe Threat Order of Protection, requiring people to submit to mental evaluations. It even would permit, under certain circumstances, for courts to order police to immediately pick up that person and, with a court order, have them held for up to 14 days.
“We think the STOP order is a good idea,” the governor said.
But Charles Heller, spokesman for the Arizona Citizens Defense League, called the proposal both unnecessary and dangerous.
Heller said existing provisions in the mental health code allow a court to order an evaluation of someone determined to be a danger to self or others. The difference, he said, is that there is clear notice to the person.
And Heller said if a court finds the person to be a danger, that ruling, by itself, means they cannot have any weapons.
More concerning, he said, is the ex parte nature of STOP orders — meaning the person isn’t even notified about the initial hearing – and what could happen when police, armed with a STOP order, show up at someone’s door.
He cited an example from Maryland where the person, not knowing who was knocking, answered the door with a gun in his hand. The police, said Heller, killed him.
“I think that’s what the anti-freedom people want,” he said.
“I think they would love for the police to come to the door and kill a guy who’s got an order against him,” Heller continued. “Because it would justify the order.”
The opposition of the Arizona Civil Defense League is a significant hurdle for Ducey.
Last year the governor got a version of the plan through the Senate after removing certain provisions. That was enough to get the National Rifle Association to back off.
But enough lawmakers in the House sided with the ACDL to kill the bill.
“Politics intervened,” the governor conceded. And he didn’t even try this year.
But Ducey, hoping to breathe life back into the plan in the 2020 session, brushed aside that organization’s opposition.
“I think you’re giving special interest groups a bigger profile,” he said.
Only thing is, it’s not just ACDL that finds the proposal offensive.
“We’re not talking about just taking people’s guns,” said then-Rep. Eddie Farnsworth, R-Mesa.
“We’re taking about incarcerating them for the purpose of a psychological evaluation against their will, potentially infringing on their First Amendment rights, and infringing heavily upon their Second Amendment rights,” said Farnsworth, who now chairs the Senate Judiciary Committee.
At the heart of the debate is whether it’s possible to identify people who are likely to become mass shooters and disarm them before they can do any harm.
Ducey contends it can be done – if police and courts have the right tools.
His Exhibit 1 is Nikolas Cruz who killed 17 and wounded 17 others last year at Marjory Stoneman Douglas High School in Parkland, Fla.
“Of course we want it to be constitutional and respect people’s rights,” the governor said.
“But when I hear someone in Florida say there was nothing that we could do for someone who had been visited by law enforcement or social services 39 times, who had posted on YouTube that they wanted to be known as a school shooter, I reject that as bad policy,” he said. “There should be something that we can do in extreme situations when someone is broadcasting that they are going to cause harm to others.”
Then there’s Jared Loughner who killed six and seriously wounded 13 others in 2011, including then-Congresswoman Gabrielle Giffords, who was meeting with constituents in the parking lot of a Tucson Safeway. The governor said there were similar reports about his conduct at Pima Community College.
Heller, however, sees a more menacing side to STOP orders.
“Basically, if you really want to F-up somebody’s rights you claim that they are violent,” he said, allowing police to seek an order to take that person’s guns.
“You get no hearing first, you get no nothing,” Heller said. “The first indication of trouble is that the police knock on their door with a warrant to take your guns.”
One part of Ducey’s plan would allow police with “probable cause” to believe someone is a danger to ask a judge to order that person evaluated for mental illness, behavioral health issues and drug use. Based on that evaluation, the judge would decide whether to order someone to undergo treatment, with the order valid for up to 14 days.
A parallel procedure would allow any guardian, immediate family member, school administrator, teacher, resident adviser, social worker or behavioral health professional to seek a similar court order.
If a judge determines at a hearing – also ex parte – that there is “clear and convincing evidence” that the person is a threat, the person is taken into custody where, for the first time, he or she gets to dispute those findings. But if the order is upheld, the person can be barred from possessing weapons for up to 21 days.
And there are options to extend that no-weapons order for up to six months.
Heller dismissed the contention that only a STOP order might have prevented the 2011 shooting in Tucson.
“We’ve got a perfectly good law that would have worked just fine with Jared Loughner,” Heller said. “There was lots of time between his incidents of crazy and his unlawful use of deadly force,” time, he said that could have been used to file a petition for his evaluation under the existing mental health laws.
“The sheriff’s department didn’t do it,” Heller said. “It was their jurisdiction.”
Ditto, he said, Pima College – other than expelling him.
“If you’ve got somebody that is doing that, that is sufficient to cause to get an order to get them observed 72 hours, and if he’s a danger to other people or himself, you can hold him for longer,” Heller said. “There’s a procedure already in the law to incarcerate somebody against their will for mental illness.”
And if they are adjudicated to be mentally ill, he said, they automatically are barred by federal law from possessing firearms.
Gubernatorial press aide Patrick Ptak said the STOP program closes loopholes in existing law to keep weapons out of the hands of those who are a danger.
Ptak, however, did not spell out what are those loopholes. But he did say that what Ducey wants to ensure that those determined to be a threat are referred for services.
And Ducey said those with whom he spoke in crafting the plan believe it is a reasonable and necessary approach.
“The balance is that individual citizen’s rights are respected and that law enforcement can also take action when they deem it necessary,” the governor said.