Houston Police Chief Charles McClelland has requested the assistance of State Rep. Allen Fletcher (R-Tomball) in clarifying the disposition of firearms which are confiscated by police when a citizen is referred for mental health evaluation.
According to current Federal and state laws, guns can only be confiscated and held indefinitely when a person commits a crime or when otherwise not permitted to own a firearm.
The guns confiscated during these types of incidents are held by police and sometimes the offender returns after a referral for mental health evaluation to collect their weapons.
Police Chief Charles McClelland told the Houston Chronicle “someone, other than the police, should have to review that case or that incident requiring that mental evaluation, to tell me if this person is still qualified to own or carry a firearm.”
The Gun Control Act of 1968, signed into law by President Lyndon B. Johnson, already prohibits the possession of a firearm by those who have “been adjudicated as a mental defective or has been committed to any mental institution.”
With the Virginia Tech shooting in 2007 and the Tucson mass shooting in 2011, both shooters passed background checks, although they were previously found to have mental health issues. After these events the issue of reporting to the National Instant Background Check System (NICS) was raised.
A law passed in Texas in 2009 facilitated the transfer of mental health records to the NICS system and more completely spelled out the terms for which a person is considered unable to legally own a firearm. As a result, Texas has become one of the leading states in reporting mental health records with 174,802 records submitted by October of 2011.
Despite these improvements, there appears to be a gap in those situations in which a person has not been previously in the mental healthcare system or who has been released from custody after an incident involving police which resulted in that person’s referral for a mental health evaluation.
Per Chief Charles McClelland “Whenever that person's (mental) evaluation is completed, because of HIPAA laws and medical privacy issues, I have no way of knowing if this person still qualifies to carry or have a firearm.”
The legislation currently under draft by State Rep. Allen Fletcher would change the current law to allow police to hold the firearm(s) of a person who is deemed a danger to themselves or others and is being transported for an emergency mental health evaluation.
There are time constraints to the legislation in which the person’s firearm should be returned, if legally permissible. If the individual in question is found unable to keep the firearm, then there would be a provision to allow the transfer of the firearm to a designee of the person or to have the police sell the firearm with money obtained returned to the individual.
State Rep. Allen Fletcher is a retired Houston police officer and has introduced or co-authored many items of legislation this term that involve firearms.
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