State lawmakers should close gun loophole on mental health

As an avid sportsman who served four years in the United States Marine Corps, Oscar Kazen has an appreciation for guns.

As a probate court judge who helped build a mental health docket frequently cited as a national model, Kazen also is sensitive to the way in which some politicians unfairly equate mental illness with violent behavior.

Nonetheless, in the wake of recent mass shootings in El Paso and Dayton, Ohio, that killed 31 people, Kazen is speaking out against a Texas law that automatically enables mentally ill individuals with a demonstrated pattern of dangerous behavior to receive their guns back within weeks of receiving treatment.

The 2013 law (Article 18.191 of the Texas Code of Criminal Procedure), which made it through the Legislature with only one dissenting vote, defines the process that law enforcement officials must follow in cases where a police officer takes a person into custody because the officer believes that person is suffering from mental illness and “there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained.”

According to the law, when a court decides not to order mental health commitment for an individual, law enforcement officials have 30 days, upon receiving notice from the court clerk, to provide written notice to the person that their firearm may be returned to them.

In a society where we’re constantly struggling to balance due process and the rights of the individual with the need for public safety, this provision seems logical, in theory.

According to Kazen, however, it creates all kinds of problems in practice, because courts these days rarely commit people for mental health issues, largely because of a shortage of long-term beds. More often, those individuals tend to be detained for only a few weeks of treatment.

“When you read the law, it makes sense,” Kazen said. “But the loophole is we’re not committing that many people. I have had circumstances in which family members are calling me the next month, saying, ‘Oh my gosh, he’s dangerous again, and he’s got the same weapon we already took from him.’ ”

Kazen said he deals with at least one case a day that leaves him shaking his head in disbelief.

As he sees it, the problem with the law is that it offers courts no discretion to assess the particulars of a case and determine the safety risks involved.

“We need to make sure they’re safe,” Kazen said. “We’re actually giving a weapon back to a person who has demonstrated that they were dangerous with that weapon.”

It’s a highly sensitive issue, because a knee-jerk political response to the El Paso and Dayton massacres has been to blame mental illness, rather than firearm accessibility, for this country’s chronic problems with gun violence.

The American Psychological Association disputed that contention in an Aug. 4 statement pointing out that an overwhelming majority of individuals suffering from mental illness are nonviolent.

“Routinely blaming mass shootings on mental illness is unfounded and stigmatizing,” the statement said.

Nearly a third of all mass shootings in the world occur in the United States, despite the fact that this country has only 5 percent of the world’s population. Nearly half of the world’s 857 million civilian-owned guns, however, are held in the United States, according to a 2018 Small Arms Survey.

Within hours of the

Aug. 3 shooting by an avowed white supremacist at an El Paso Walmart, Texas Gov. Greg Abbott said, “Mental health is a large contributor to any type of violence or shooting violence.”

Six days after the shooting, President Donald Trump said his goal was to get guns out of the hands of “sick” and “deranged” people.

Kazen knows about all these damaging stereotypes. His focus is not on restricting the rights of people grappling with mental illness, but in closing a loophole that pertains to a specific group of people with a pattern of dangerous behavior.

“I am not indicating that people who are mentally ill are dangerous,” Kazen said. “Because that’s not my thought. But when they do this on a repeated basis, we should be able to step in.”

A San Antonio police officer, who spoke to me on the condition of anonymity, said he always had a philosophical objection to the concept of confiscating people’s guns.

“But after doing this and reading the reports,” he said, “it’s disturbing how many people get their guns back who shouldn’t have them.”

Texas lawmakers could take a positive step on the gun issue by tightening this one provision. It would give judges reasonable latitude to keep guns away from people who’ve demonstrated they shouldn’t have them.