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Aurora Health Care

Police say there is hole in gun law


Deputies, officers can't learn when a mentally ill person is banned from owning a firearm



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December 24, 2012 | 12:39 PM
ELKHORN — Local law enforcement officials believe there is a problem when it comes to keeping firearms out of the hands of the mentally ill.

A judge can determine that a mentally ill person is a danger and can't own a weapon, but it is illegal for police to view that record, which raises enforcement and safety concerns.

Wisconsin judges, after a series of hearings, can commit a person who is mentally ill, and strip them of their right to own firearms.

This gun ban appears when a firearms dealer does a background check. However, it doesn't turn up when police look at a person's record.

Law enforcement officials believe this knowledge should be available to them. Whether they are conducting a traffic stop or responding to a standoff, police want to know whether they are facing a person found to be mentally unstable and possibly dangerous.

"Law enforcement decision making a lot of times is based on the information that is at the forefront of the case or the call at the moment," Walworth County Undersheriff Kurt Picknell said. "More information would be helpful and would provide more officer safety."

Both Picknell and Elkhorn Police Chief Joel Christensen believe this information should be available to them.

"The sooner we have access to that (mental health) information the better it is for all," Christensen said.

On Dec. 14, the Walworth County Criminal Justice Coordinating Committee held its regular meeting where it discussed Chapter 51 mental health commitments. Officials wanted to know whether firearms are turned over after a person is found to be mentally ill.

Only a few hours before the meeting, a gunman entered Sandy Hook Elementary School in Newton, Conn., and killed 26 people, including 20 children. The discussion on Chapter 51 commitments was scheduled well before the school massacre.

In an email, state Department of Justice Communications Officer Dana Brueck wrote that state law prohibits law enforcement from learning of civil commitments. It is the Department of Justice's policy to follow the law as it is written, she wrote.

Should the law change?

"That is a question for the Legislature," Brueck responded. "If legislation were to be drafted related to this issue, we would be ready to review or assist in its development." Brueck didn't respond to a question that asked if this was a good policy.

Commitments take time

Michelle M. Snead, assistant corporation counsel with the county, said there is a process for committing someone and it isn't enough if a person simply suffers from a mental illness.

A requirement for commitment is that a person must be afflicted with a mental illness, a developmental disability or a dependence on alcohol or other drugs.

That person also must make a credible threat of violence to themselves or another person.

Not every person that is taken into custody by police on an emergency detention hold is actually held by the county.

The county will determine whether to hold the individual, or the person may be released to a responsible party.

As of Thursday, in 2012 the county took 124 people into custody for emergency detentions. Twenty-three of those people were committed and are restricted from owning firearms.

Snead said after a person is committed, he or she can petition the court to have his rights restored. She knows of one person who so petitioned the court, but that effort failed.

Brueck wrote that after a court commitment, a person is required to report the information to the Department of Justice, which reports the information to NICS, the National Instant Criminal Background Check System. This is the system gun dealers use when they check to see if someone can own firearms. However, law enforcement doesn't have access to this information.

Brueck said the court can also order that any firearm the person owns is seized.

The mentally ill person can turn his or her guns over to a third-party or police.

The CJCC discussed whether there was any follow through to ensure this is done.

"My concern is, when I read that warning to a subject, I'm just spinning my wheels," Walworth County Circuit Court Judge John Race said.

Snead said police may be in the courtroom during initial hearings, but they won't be there during the final hearings. This means even the officer who took the person into custody may not know the outcome.

Making the information available

During the CJCC meeting Race also argued that this information should be available to police.

"This isn't something that is abstract," he said and pointed to a recent case where a mentally ill man fired a rifle at the Sheriff Department's SWAT vehicle.

Police react

Fontana Police Chief Steve Olson said it is a problem that this information isn't available to police.

"It would be helpful to police to be able to red flag a person knowing that they shouldn't be around firearms," Olson said.

When police run background checks, it will appear if the person is a felon, which would make it illegal for them to own a firearm.

Depending on the felony, the officer may react differently during the traffic stop.

"If you look and you see an armed robbery or a battery to a police officer that does heighten the officer's awareness," Olson said. "They may be request that a backup officer be present."

However, Olson also said that during high-risk situations, police don't always know who the suspect is or have time to access background information.

"It is extremely rare in advance that we know who we are going to be dealing with and that a check has been done of them," Olson said. "A lot of times that has not been done until we call in the situation, secure it and then identify who we are dealing with."

Police have discretion to decide whether to take someone into custody for an emergency detention.

Christensen, the vice chairman of the CJCC, said he plans on bringing his concerns back to the committee.

"We are going to ask whether the committee itself would endorse a letter to go to our local representatives informing them of our concerns," Christensen said.

Picknell said the information could be restricted for law enforcement use only.

"The use of information from the (crime information bureau) already has restrictions in place, so this would be no different," Picknell said. "It would be restricted for official law enforcement use."

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