Lieutenant Brian Curtis, of the Mechanicsburg police, has seen the flaws in the state’s process to involuntarily commit a person. (Capital-Star photo by Stephen Caruso)
Brian Curtis, a lieutenant in the Mechanicsburg Police Department, has handled dozens of involuntary commitments during his 18 years as an officer in the borough just 15 minutes west of Harrisburg.
In Pennsylvania, the process is also known as a “302,” for the section of state law that lays out how an individual in a mental health crisis can be submitted for mandatory medical treatment.
When Mechanicsburg police do commit someone, voluntarily or not, they ask if the individual is a gun owner, Curtis told the Capital-Star. If that’s the case, the police ask the person if he would be willing to turn over his firearms.
The individual might consent because everyone agrees it’s a good idea — but there’s no legal obligation to do so, he said.
“We’re definitely a gun rights commonwealth,” Curtis said. “There’s no doubt about that.”
In Pennsylvania, more than 2,000 people died by suicide in 2017. Of those, just under half — 993 — involved a firearm.
Suicides also made up the majority of Pennsylvania’s 1,636 firearm deaths that same year.
Individuals with a 302 on their record are barred from owning or acquiring firearms, and they would not pass a state background check. If they’re caught illegally possessing a gun, they would face further legal jeopardy.
But under the state’s 302 law, there is no legal requirement that a person involuntarily committed surrender his firearms to authorities or other designated official. There is also no formal mechanism to take guns away.
According to one lawyer, the situation creates a chance to become an “accidental criminal.”
Or, as Curtis put it: It’s a “catch-22.”
Pennsylvania lawmakers are debating how to reduce gun homicides and suicides, as well as preventing rare, but no less deadly, mass shootings.
Democratic Gov. Tom Wolf and anti-gun violence advocates are pushing an extreme risk protection proposal, often referred to as a “red flag” law, which has been shown in other states to reduce suicide by firearm.
While the legislation is sponsored by and has the backing of moderate Republican lawmakers as well as Democrats, a key GOP committee chairman thinks he can make the involuntary commitment process just as effective by requiring people to surrender their firearms.
“There are difficulties in attempting to keep guns out of the hands of folks who should not have them,” House Judiciary Committee Chairman Rob Kauffman, R-Franklin, said in September. “We are doing the absolute best we can.”
But many on the ground who deal with the complicated process, from law enforcement to lawyers, are less sure.
What is a 302 and how does it work?
Let’s say you’re a parent and have a son who has been going through a rough patch.
He lost a job, or his relationship ended, and he’s settled into a depression. He isn’t sleeping or eating. Maybe he’s become suicidal and also purchased a gun after never showing interest.
It’s then, said Candace Good, a State College-based psychiatrist, that a parent might seek a 302.
The process allows a health professional, law enforcement official, family member, or friend to petition a county health administrator to temporarily commit someone who poses a “clear and present danger” to himself or others.
A person may be committed if they’ve attempted to harm themselves, become a significant risk to another person, or “because of a mental health condition, they are totally unable to care for themselves,” Good, who is also a Pennsylvania Medical Society board member, told the Capital-Star.
But a person cannot be committed for substance abuse or for behavior under the influence. Statements about self-harm or suicide that occur while a person is intoxicated also cannot be part of an application for an involuntary commitment.
If the 302 application is from a physician, police officer or a, designated county health administrator, the individual can be immediately taken into custody and brought for an examination.
If a family member or friend makes the request, a county official must approve the application. If they call the police for a mental health emergency, the request can be processed in the field.
Denise Macerelli, deputy director of Allegheny County’s Office of Behavioral Health, said there is no delay in the process, at least in her county. But the process can vary from place to place.
According to Macerelli’s office, the county — which includes Pittsburgh — has received 4,741 requests for involuntary commitments since January of this year.
Of those, 3,499 were requested by friends or family and required county review; 521 were denied.
If a commitment application is denied, Macerelli added, the office still tries to set up wellness checks by police or county officials.
An approved application doesn’t guarantee commitment; rather, it leads to a medical examination at a hospital by a physician.
As the form provided to someone in that situation reads: “Within two hours from now you will be examined by a physician. If the doctor finds that you do not need treatment, you will be returned to whatever place you desire within reason.”
Doctors, Good said, can be nervous to get involved, fearing extra paperwork and court hearings that they don’t understand.
If a person seems lucid but in need of help, the doctor could also suggest to the patient that they voluntarily commit themselves to care.
If that happens, the patient will still be able to own and purchase firearms in the future. Good said doctors, trying to preserve patients’ rights, might err on the side of offering the voluntary stay over involuntary treatment.
In Allegheny County, for example, just under a fifth of all 302 petitions— nearly 4,741 in total — were overturned by a doctor, who decided against commitment.
Parents, she added, also express concern about their child’s future, and question why they weren’t informed earlier of future consequences so they could consider a different path for care.
“As a parent, I totally understand where they are coming from and I’m the one taking the heat,” Good said.
Is closing the loophole enough?
Curtis had a personal experience with the 302 gun loophole, when a friend had a “meltdown” and became suicidal.
The cops came to the friend’s residence to involuntarily commit him. The friend ended up in the hospital for a few weeks.
The friend was also a gun owner, which Curtis knew. Since their families were close, Curtis was asked to hold on to the firearms for safekeeping until his friend returned home. Curtis figured his friend would be OK with that.
“I was kinda saying ‘Eh, you know, I’ll just hold onto them for a little bit,’” he said.
Curtis still has the firearms. His friend has not asked for them back, and Curtis hasn’t reminded him about it.
In 2016, just over 37,700 mental health records were submitted to Pennsylvania’s background check system.
Those records preclude ownership or purchase of a firearm, according to a State Police spokesperson.
The 302 process was created by a 1976 law which still governs much of the state’s mental health procedures. In a 1990s rewrite of state gun laws, the Legislature prevented people subject to an involuntary commitment from owning firearms.
An individual with a 302 on his record can, however, petition a judge to have his gun rights restored and record expunged, according to Harrisburg attorney Katherine McShane.
McShane, a self-described gun owner and Second Amendment supporter, is part of the McShane Firm — a law group that represents gun owners.
But the legal process to get rid of a 302 is time consuming and can take months, if not over a year, she said.
Because being involuntarily committed means you’ve not only threatened harm, but shown evidence that you might follow through, McShane said judges might be reluctant to restore firearm rights.
And, in McShane’s experience, if that stay is extended any further then five days, your ability to own a gun is as good as gone.
That’s why she encourages clients to agree to treatment.
“If you’re staring down the barrel of a 302, the best and quickest way to protect your gun rights is to agree to stay [in the hospital] voluntarily,” McShane told the Capital-Star.
Even if a state judge later ruled a person was capable of owning a gun in Pennsylvania, the commitment would have, until this year, stopped the individual from passing a federal background check.
But gun-rights supporters scored a win in May when the federal Bureau of Alcohol, Tobacco, and Firearms ruled that Pennsylvania’s firearm restoration program met federal standards.
If Pennsylvania restores your rights, then you meet federal standards to buy a gun.
The new rule led Kauffman, the Republican lawmaker, to believe his bill would make 302s as strong as a red flag law, which proponents say provides more due process.
Under Kauffman’s proposal, a person would be required to turn over their firearms within 48 hours of being released from an involuntary commitment.
Currently, individuals convicted of certain offenses or under certain orders — like one that governs protection from abuse — must hand over their firearms to either local law enforcement or a dealer.
If they fail to do so, law enforcement will notify the individual and the court of the lack of compliance. Not turning in firearms as required is a second-degree misdemeanor, punishable by two years in jail and a $5,000 fine.
“The 302 isn’t as huge as it was before and would not be so prohibitive,” Kauffman said. With a lifetime ban on gun ownership now off the table, people won’t be “trying to avoid it at all costs.”
The bill would also shrink the time to report a disqualifying mental health incident to the State Police from seven to three days.
Kauffman’s bill advanced during a September meeting of the Judiciary Committee. It could be passed by the whole House as soon as the week of Oct. 21, when the chamber is back in session.
The Republican didn’t bring a red flag proposal up for a vote during that meeting and made headlines for saying he would never do so as chairman.
“Honestly, I think they’re disappointed because the way the 302 process is and this bill kinda negates their call for red flag,” he said of his critics.
McShane did not specifically say she supports extreme risk protection orders. She also doesn’t think Kauffman’s bill is a bad idea, even if it might rely on the “honor system.”
But she said it is misleading to compare the 302 process to a red flag law, since a person would have their firearm rights automatically restored after an extreme risk protection order expires.
“At least as soon as [an ERPO is] done, you don’t have to file that petition,” she said. “It’s not a permanent scar on your record.”
For Curtis, the Mechanicsburg officer, his frequent dealings with people grappling with mental illness have made him open to a red flag law.
He’s seen doctors pass on committing people. And to Curtis, the heavy handed process seems ill-suited to a temporary crisis.
“The 302 is scary to people,” he said. “It is an involuntary commitment.”
He also thinks extreme risk protection orders could serve as a backup to the state’s existing law.
“You fill out a 302, and then it doesn’t go through, you still have that extreme risk protection where we’re making sure to still take the firearms out of their hands.”
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