Earley: Murphy’s Mental Health Bill Stymied due to Dust Up About Guns

Murphy’s Mental Health Bill Stymied Again, This Time Because Of Dust Up About Guns

Pete Earley Blog July 28, 2016

Rep. Tim Murphy’s Helping Families in Mental Health Crisis Act was passed by a 422-2 vote in the House earlier this year, but it’s now treading water and the prospect of it being signed into law this session is fleeting.

The trouble hasnothingto do with the contents of Murphy’s much altered bill. As first reported by Peter Sullivan in The Hill, this time around the fight is in the Senate and it is about guns.

The companion bill to Rep. Murphy’s in the Senate is SR 1945, the Mental Health Reform Act of 2015, bipartisan legislation introduced by Sens. Chris Murphy (D-Conn.) and Bill Cassidy (R-La.) that mirrors the House bill with a few exceptions. That bill was on a fast-track, speeding forward when it hit a brick wall because ofSen. John Cornyn (R-Texas.)

He told members of the Committee on Health, Education, Labor, and Pensions that he wanted to blend his bill, SR 2002 – the Mental Health and Safe Communities Act of 2015 –– with Sen. Murphy’s and Cassidy’s SR 1945 legislation.

I testified at a U.S. Senate Judiciary hearing Cornyn held about his bill because I support his call for reauthorization of the Mentally Ill Offender Treatment and Crime Reduction Act (known in Washington DC parlance as MIOTCRA). That act calls for funding of crisis intervention team training in local law enforcement and the creation of mental health courts. It also supports prison and jail-based transitional services and reentry programs for persons with mental illnesses when they are released from incarceration.

Those provisions have wide bi-partisan support, but there are two parts of Cornyn’s bill that don’t and that is where the problem has arisen. His bill supports greater implementation of Forensic Assertive Community Treatment or AOT, which always draws an immediate attack from anti-AOT groups. The bigger issue, however, is a provision in Cornyn’s bill that would change the rules about gun ownership by individuals with mental illnesses.

At lunch in the U.S. Capitol, Cornyn told me that the language in his bill is intended to help veterans who are denied gun ownership arbitrarily. There are a lot of Texans who are veterans and many of them like to hunt and own guns, he explained.

This gets a bit complicated, but here is the gist of his argument.

Under current regulations, the Veterans Administration can step in when a veteran has been diagnosed with a mental illness and appoint a “representative payee” to handle that veteran’s benefits. When that happens, that veteran’s name is automatically added to the National Instant Criminal Background Check System (NICS) as a “prohibited person due to mental health issues,” which means that individual can’t purchase a gun. The VA often is inconsistent and arbitrary when it comes to appointing “representative payees,” Cornyn claims.

Cornyn and the National Rifle Association, which is backing Cornyn’s bill, claim that the VA’s actions are unfair because the federal government is stripping away an individual’s Second Amendment rights without a judicial hearing. (In addition to the NRA, I need to mention that Cornyn’s bill also is being supported by a variety of law enforcement and mental health organizations, including the National Alliance on Mental Illness, the American Correctional Association, the National Association of Police Organizations, the National Association of State Mental Health Program Directors, and the American Jail Association.)

“Basically, right now some agencies like the VA make their own determination of mental illness and bypass the court process,” Cornyn spokesperson Drew Brandewie told the Washington Free Beacon. “This bill codifies into law that individuals must get their day in court they’re entitled to, and no agency or state can make their own determination without that…The current statute is ambiguous, so our bill clarifies by saying individuals must have these things (notice, a judicial hearing, and a determination from a judge) before any government or federal agency can try to include them in NCIS. This bill actually strengthens Second Amendment rights in this way.”

Hold on, Joshua Horwitz, executive director of the Coalition to Stop Gun Violence, counters in an editorial published in The Hill, which covers legislation in more detail than most publications. In an opinion piece titled, “Cornyn’s mental health bill: Wolf in sheep’s clothing,” Horwitz claimed there’s more to this than just veterans’ rights:

Most people with mental illness will never be dangerous and research shows that people with serious mental illness are more likely to be victims, rather than perpetrators, of violence. However, there are certain factors based on behavior, not diagnosis, which increase a person’s risk of future violence. One of those factors is involuntary hospitalization based on risk of harm to self or others, which is why federal law prohibits those who have been involuntary committed to a psychiatric institution from purchasing of possessing firearms until a court restores their rights.

For some inexplicable reason (or maybe as a favor to the NRA), S.2002 would change federal law by creating a disqualification that lasts only as long as a commitment order is in effect, which is typically a matter of days. This could be disastrous because research shows that the period immediately following a discharge from an inpatient facility is the time of most concern for many patients who are going back to the outside world where all the same stressors (including drugs and alcohol) are still there.

Additionally, Cornyn’s bill would immediately remove those who are so mentally impaired that they have a court appointed guardians to manage their financial affairs from the National Instant Background Check System (NICS). Currently, federal law prohibits those who have been adjudicated as “mental defectives” (I admit, this derogatory term needs to be changed) from purchasing or owning firearms. S.2002 would narrow this category of persons significantly so that financial incapacity would no longer qualify as a firearm prohibition. While some might argue the financial incapacity disqualification is too broad, in this setting, where a state court judge with full due process has ruled, we should not offer across the board restoration without ensuring that individuals who pose a risk to self and/or others remain prohibited. The answer to out-of-control gun violence in our society is not to give thousands of individuals who are at potential risk for future violence immediate access to guns.

Which brings us to the bottleneck in the Senate.

Writing in The Hill, reporter Peter Sullivan reported that Sen. Murphy immediately balked when he learned Cornyn was hoping “to attach gun-related language…that would require a full judicial hearing to ban someone from buying guns due to mental illness” into his and Cassidy’s bill.

Sen. Chris Murphy (D-Conn.), one of the sponsors of the health committee’s bill, said such provisions would prevent him from supporting the bill…Murphy said, ‘Obviously I can’t support a bill on the floor that has those provisions in it.”

The result is that Rep. Tim Murphy finds himself stuck in the House in a canoe without paddle. Until the Senate passes the Murphy and Cassidy bill, the House bill is stymied.

Writes Sullivan in anarticle published a few days ago:

Democrats warn that any gun language could derail the mental health bill, and they’ve won some support from GOP colleagues.

Sen. Lamar Alexander (R-Tenn.), the chairman of the Senate health committee, told reporters this month: “Hopefully we can keep gun amendments off of it. If it turns into a gun bill it won’t go anywhere.”

He said that (Chris) Murphy has been “eloquent” on the need to keep the issues separate and keep gun control amendments off the bill.

A lack of time is also an obstacle. The Senate will be in full election mode when it returns for one month in September, and will be preoccupied with passing a continuing resolution to fund the government.If any floor time does open up in that month-long window before Congress breaks for the election, it could go to a different health bill, the 21st Century Cures Act, which seeks to speed up the approval of new drugs. Alexander has made clear that this legislation, which faces its own struggles, is his top priority.

If the mental health bill cannot pass the Senate before the election, there would be little time to get it through this Congress….