Gun Rights Groups Cry Foul on Bill Changes

Thursday, April 16, 2015
Montpelier — The House Judiciary Committee approved a bill on Tuesday that puts new limits on gun ownership. The 7-4 vote broke along party lines with Democrats in favor and Republicans opposed.

The bill would make it a crime for people convicted of certain violent or drug-related offenses to possess a firearm, and would require Vermont to report people with mental illness found by a court to be a danger to themselves or others to the FBI’s National Instant Criminal Background Check System (NICS).

Proponents say the bill would reduce gun violence by keeping firearms away from domestic abusers, drug dealers and other violent criminals, as well as people who are mentally unstable. Gun rights groups have strenuously opposed the legislation, particularly an earlier version of the bill that would have required background checks for private gun sales.

The House version eliminates an 18-month waiting period for people who want a court to remove their name from the background check database. A new provision changes the standard of evidence a judge must apply when hearing a person’s petition from a “preponderance” of the evidence to a stricter “clear and convincing” level of evidence.

Preponderance of the evidence is a lower standard of proof. Attorneys who testified in House Judiciary compared the standard to a 51 percent to 49 percent showing of the evidence in favor of the petitioner. Clear and convincing is a higher standard that falls just one step below the more stringent “beyond a reasonable doubt” standard used in many criminal statutes.

Changing the standard for evidence disrupted an uneasy compromise between the bill’s supporters and opponents. Gun rights groups had said they would drop their opposition to the bill if the waiting period was removed, but they said the introduction of a higher standard of evidence is unpalatable.

There are 33 states that report people with mental illness to the federal database and also have a legal process for people to have their rights reinstated, according to legislative attorneys. Five states and the District of Columbia have waiting periods that range from one to five years. An earlier version of the bill contained a five-year waiting period.

On Tuesday, Rep. Thomas Burditt, R-West Rutland, introduced the amendment removing the waiting period and made other minor tweaks to the reinstatement process, which gun groups supported. Rep. Willem Jewett, D-Ripton, offered an amendment to that amendment that changed the standard of evidence.

Jewett’s amendment passed on a 7-4 party-line vote. Burditt’s underlying amendment passed 6-5, with the committee’s four Republicans joined by Rep. Barbara Rachelson, D-Burlington, who voted “no” because she wanted to retain the waiting period.

Burditt was visibly frustrated after the vote, and told the committee that he felt Jewett was looking to score a political victory by changing the standard of evidence.

“Sometimes, I think things are done around here more for the reason to getting a win than doing the right thing, and I think this is one of those things that’s all about getting a win,” Burditt said.

Committee Chairwoman Rep. Maxine Grad, D-Moretown, said she thought the amendment struck a “good balance” for a reinstatement of a process that protects the public and respects people’s rights.

Thirteen states with a reinstatement process use the “preponderance of the evidence” standard, while nine use “clear and convincing.” Four states’ statutes are silent on the topic, leaving it to the courts to decide, according to legislative attorneys.

Ann Braden of the group Gun Sense Vermont said she believes the bill sets an “appropriate bar” for proving someone is no longer a danger.

Evan Hughes of the Vermont Federation of Sportsmen and Sportsmen’s Clubs, the state’s NRA affiliate, said his group would now “adamantly” oppose the bill “in each and every venue possible.”

The higher evidentiary standard will make it cost prohibitive for people to get the legal help necessary to meet the “clear and convincing” standard now in the legislation, said Bill Moore, of the Vermont Traditions Council.

“Their lawyers are going to look at them and say ‘Don’t even waste your time, you can’t afford this,’ ” he said.

Most people with mental illness in Vermont who have to go before a court are defended by Legal Aid’s Mental Health Law Project. Jack McCullough, lead attorney for the project, said in written testimony that he would be willing to represent people in the process but does not have the resources.

The bill could face a preliminary floor vote today.

Sen. Joe Benning, R-Caledonia, said if the bill passes the House, and he’s appointed to the committee of conference, he would have “a difficult time swallowing” the stricter evidentiary standard.

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