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Delaware: Bill that Violates Due Process to Be Heard in Committee; Your Help is Needed!

Wednesday, May 6, 2015

Delaware: Bill that Violates Due Process to Be Heard in Committee; Your Help is Needed!

Senate Bill 83 was recently introduced to the Delaware Legislature and has been assigned to the Senate Judiciary Committee.  It is critical that you contact and urge members of the Senate Judiciary Committee to OPPOSE this piece of legislation that not only violates due process but also disrespects your Second Amendment rights.

If enacted, SB 83 would exceed current Delaware and federal law, and would allow abuse orders, which can be issued ex parte, to be issued without evidence that a person committed any actual act of harm against a person, or that the person has even been charged with any criminal act.  After the order has been processed a person would be disqualified from owning any firearms or ammunition.

Ex parte orders are issued without notice or a chance to be heard by the affected person. They are also based entirely on a one-sided version of events, as portrayed by the person who wants the order issued.  All that is needed is a preponderance of evidence that the person engaged, for example, in a “course of alarming or distressing conduct in a manner likely to cause fear or emotional distress.”  This is a very flimsy basis upon which to deny someone their fundamental, constitutional rights.  There is no requirement that a firearm (or any weapon) be used as part of the alleged abuse before the firearm disqualification may be imposed.

These orders may be brought against someone from a past relationship, even if there is no current physical or social connection.  For example, an individual may file an abuse order against someone they had a relationship with four years ago, and it would be a valid.

Once issued, under this bill the new prohibition on obtaining a firearm is effective immediately upon entry of the protective order, and not upon notice to the affected person.  A person subject to an order has to surrender all firearms and ammunition within his or her custody and control immediately on request or within 24 hours of being served with the order.  Within 48 hours of service, the person must file a certification or proof of transfer with the court.  SB 83 has no mechanism to allow for extensions.

If the order is ex parte, the order may be entered without the person having any knowledge that he or she is under a prohibition or disqualification from possession of firearms.  Any attempt by the person to acquire a firearm in the period between the entry of the order and actual notice may subject the person to the “prohibited person” penalties in Delaware. Under existing Delaware law, a prohibited person who knowingly possesses, purchases, owns or controls a deadly weapon or ammunition for a firearm while so prohibited is guilty of a class D felony.

SB 83 provides no option for a person to turn the firearms and ammunition over to a friend, family member, or other third party qualified to possess firearms.  A person who is subject to an order must relinquish firearms and ammunition to law enforcement.  The police are authorized to impose charges for the storage, although the bill does not set any rates for police storage of surrendered firearms or ammunition.  After a year, the storage fees may be more than a firearm or ammunition is worth.  If the firearms or ammunition are found to be items owned or claimed by another person, there is no requirement that a law enforcement agency be required to return them to the person who has a claim or interest.  Also SB 83 would allow police, after they give the owner the requisite notice, to sell or transfer of the firearms to a FFL or licensed collector, dealer, importer, or manufacturer with no right to the sale proceeds by the former owner.

It is of the utmost important that you contact your state Senator and urge them to OPPOSE Senate Bill 83.

Also, please contact the members of the Senate Judiciary Committee and urge them to vote NO on SB 83 when it is heard. Contact information for committee members is provided below.

Senate Judiciary Committee:

Senator Margaret Rose Henry (D-2), Chair
(302) 744-4191
MargaretRose.Henry@state.de.us

Senator Patricia M. Blevins (D-7)
(302) 744-4133
Patricia.Blevins@state.de.us

Senator Gregory F. Lavelle (R-4)
(302) 744-4048
greg.lavelle@state.de.us

Senator Harris B. McDowell (D-1)
(302) 744-4147
Harris.McDowell@state.de.us

Senator F. Gary Simpson (R-18)
(302) 744-4134
gsimpson@udel.edu

Senator Bryan Townsend (D-11)
(302) 577-5316
Bryan.Townsend@state.de.us

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