Wednesday, June 20, 2018
Politics

PolitiFact Florida: On the Baker Act and guns

After the shooting at Sandy Hook Elementary School in Newtown, Conn., a group called Mayors Against Illegal Guns has become one of the leading advocates for changing laws. One of those mayors, Mike Ryan of Sunrise, says some of Florida's laws need another look.

"Now someone committed involuntarily for 72 hours under the 'Baker Act' (as a danger to themselves or others) will have their guns returned to them by the police automatically and immediately upon discharge after 72 hours AND their commitment is never entered into a background check database," said Ryan. "As a result, there is also no impediment or second thought given to someone being released and purchasing a gun."

Ryan's claim suggests it's a cinch for someone "committed" under the Baker Act to reclaim their guns and then stay off lists that would ban them from getting a new one. Is it?

• • •

Under the Baker Act, law enforcement can take someone against their will to a facility for a mental health evaluation if the person is a danger to themselves or others. A person can't be held involuntarily for longer than 72 hours, but a medical expert needs to examine the person and sign off on his or her release.

The simple act of being held under the Baker Act doesn't mean the person is mentally ill or in need of commitment. In 2010, less than 1 percent of about 140,000 involuntary examinations led to involuntary placement in a mental health treatment facility, according to the Florida Department of Children and Families.

We couldn't find data regarding how often someone who is Baker Acted has their firearm taken. But interviews with attorneys, law enforcement officers and experts on the Baker Act revealed that it does happen.

Whether the law enforcement agency takes the gun for safekeeping depends on the case, they said. For example, if a wife reports that her husband is despondent and has a gun, and he is Baker Acted at home, police would take the gun, said Col. Jim Previtera of the Hillsborough County Sheriff's Office. But if someone is Baker Acted on the street and didn't have a gun with him, the Sheriff's Office wouldn't go to the home and seize a gun.

• • •

For evidence of Ryan's claim, he pointed us to a 2009 Florida attorney general opinion. It states that law-abiding people who are released under the Baker Act should get their guns back.

"In the absence of an arrest and criminal charge against the person sent for evaluation under Florida's Baker Act, (law enforcement) may not retain firearms confiscated from such persons and retained by that office," concluded then-Attorney General Bill McCollum.

The opinion didn't outline procedures for gun retrieval. So in practice, that means "there is absolutely no consistency around the state in how this is being practiced," said former state Baker Act director Martha Lenderman, who now trains law enforcement.

Of the agencies contacted by PolitiFact Florida, we found most required a court order before returning guns.

In Hillsborough County, a judge will ask the person to describe what happened that led to the Baker Act evaluation and some other questions, said Jason Gordillo, the Hillsborough sheriff's legal counsel who has handled such cases for 10 years.

The judge looks for any legal grounds that would ban the person from getting their gun back — for example a felon or someone with a domestic violence injunction. Usually, after a brief hearing, the judge issues the order to return the gun.

"They can pick it up that day if they want," Gordillo said.

The Pasco County Sheriff's Office doesn't have a written policy but handles matters on a case-by-case basis, said spokesman Kevin Doll. He said the usual requirements for return of a gun include Baker Act hospital discharge records, a letter from a licensed mental health professional stating the person is of sound mind and is in no harm if the firearm is returned, and proof of ownership.

"We cannot compel a person to provide their medical records … but if they want their weapons back without a court order, they must provide the requested documents," Doll said via email.

The Pinellas County Sheriff's Office also handles such matters on a case-by-case basis and sometimes requires a court order, according to Sgt. David DiSano.

Statewide, few law enforcement agencies simply hand back guns, said Jon Gutmacher, an Orlando defense attorney who specializes in firearm cases.

"You are supposed to get your gun back automatically, but rarely does that happen because they are in the hands of the police department," he said.

And even if someone is committed for longer treatment, he or she may petition the court to restore their gun rights.

• • •

As for background checks, any person who has been "adjudicated as a mental defective" or "committed to a mental institution" is prohibited under federal law from possessing any firearm.

Since an evaluation under the Baker Act does not equal commitment, it is not entered into the FBI's National Instant Criminal Background Check System.

Lenderman said the state needs more clear public policy on when to take and when to give back guns in Baker Act cases.

"Simply having a diagnosis of a medical disorder, which it is, should not deprive you of constitutional rights unless certain criteria have been met," she said."

In ruling on Ryan's statement, we found that those who are released after a Baker Act evaluation are entitled to get their guns back but many law enforcement agencies require a court order, a process than can take several weeks.

But he is correct that people committed under the Baker Act are not included in databases for background checks on gun purchases. Because this claim leaves out important details, we rate it Half True.

PolitiFact Florida is partnering with 10 News. See video fact-checks at WTSP.com/PolitiFact.

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