Analysis: HB 354 mandates lifetime gun disability for alcohol or substance users

[Editor's Note: Jan. 9, 2020: BFA has received inquiries as to authorship of this article. It is a product of members of our Legislative Committee and represents Buckeye Firearms Association's legal analysis of the bill.]

Earlier this year we saw the introduction of gun control measures by Governor DeWine in SB 221, otherwise known as his STRONG Plan. We published an analysis of that bill here.

Shortly after SB 221, Representative Plummer in the House of Representatives sought to introduce his own bill, HB 354, as an alternative. Unfortunately it creates a train wreck of problems for Ohioans and may be the single worst piece of legislation we have seen in a very long time.

You can read the text of HB 354 here. We note the following problems.

HB 354 ...

Changes the legal definition of "mental illness" to include alcohol and substance users and mandates a lifetime firearms disability.

HB 354 creates a new means to institutionalize those with "moderate or severe substance use disorder," as determined by the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition), if said persons have shown some "other violent behavior" or "present dangerousness." If this bill passes, Ohio law will dictate that you are "mentally ill" if you use alcohol, marijuana, or others substances and check off 4 out of the following 11 symptoms within a 12 month period:

• Consuming more alcohol or other substance than originally planned.
• Worrying about stopping or consistently failed efforts to control one’s use.
• Spending a large amount of time using drugs/alcohol, or doing whatever is needed to obtain them.
• Use of the substance results in failure to "fulfill major role obligations" such as at home, work, or school.
• "Craving" the substance (alcohol or drug).
• Continuing the use of a substance despite health problems caused or worsened by it. This can be in the domain of mental health (psychological problems may include depressed mood, sleep disturbance, anxiety, or "blackouts") or physical health.
• Continuing the use of a substance despite its having negative effects on relationships with others (for example, using even though it leads to fights or despite people’s objecting to it).
• Repeated use of the substance in a dangerous situation (for example, when having to operate heavy machinery or when driving a car).
• Giving up or reducing activities in a person’s life because of the drug/alcohol use.
• Building up a tolerance to the alcohol or drug. Tolerance is defined by the DSM-5 as "either needing to use noticeably larger amounts over time to get the desired effect or noticing less of an effect over time after repeated use of the same amount."
• Experiencing withdrawal symptoms after stopping use. Withdrawal symptoms typically include, according to the DSM-5: "anxiety, irritability, fatigue, nausea/vomiting, hand tremor or seizure in the case of alcohol."

As we consider the implications of this bill, we are greatly disturbed. Whenever a government seeks to devise new ways to deprive the liberty of its citizens, we should all be paying attention.

Representative Plummer, a former sheriff, has adopted an extreme and draconian view of who may be taken into custody and subjected to involuntary commitment by expanding the definition of "mental illness" to include "alcoholics" and "substance users." The bill does not indicate what "other violent behavior" or "present dangerousness" means, and we see this language as an open market for interpretation and ripe for abuse.

For gun owners in Ohio, once an individual is involuntarily committed under this new definition of "mental illness," they would be automatically placed under a lifetime firearms disability and subjected to an unending stigma potentially impacting employment and family life.

Changing the definition of "mental illness" greatly expands the class of persons who may be involuntarily committed, with countless Ohioans affected, including those who are otherwise law-abiding and pose no danger to others. We question how many college fraternity members or football tailgaters would fall under this new definition of "mental illness." We also wonder why Ohio has decriminalized marijuana possession and approved it for medical use, while this bill would treat those who have 4 of these 11 symptoms as "mentally ill."

For these reasons, we strongly OPPOSE HB 354 and urge legislators to reject this provision in total. However, the bill goes on to create even more problems.

HB 354 also ...

Delays the sealing of juvenile records for 10 years after becoming an adult.

Current law automatically seals juvenile records at the age of 23. This bill would delay that for an additional 5 years, until the age of 28.

As we examine this provision, legislators would do well to remember that juvenile justice is intended to be a means of rehabilitation, not a means of punishment. This change could impact employment, education, and all sorts of things in a young person's life.

We see the additional delay for sealing juvenile records as arbitrary, unfair, and punitive. Legislators have advanced no rationale that would explain this change.

Dramatically increases the number of people who cannot possess firearms.

This bill goes far beyond federal law to create several new classes of prohibited persons. This includes anyone under indictment for or who is convicted of, pleaded guilty to, or adjudicated a delinquent child for an offense punishable by imprisonment of a year or more.

So, rather than prohibiting those who have actually committed violent crimes or are guilty of certain drug offenses, the bill would prohibit almost everyone who has committed any crime punishable by a year or more.

Ignores due process and prohibits guns upon being charged with a crime.

This is a serious problem because merely being "charged" with a crime (not indicted) is not a firearm prohibition under existing state or federal law. Under this bill, the moment you're charged, you lose your gun rights.

Turns otherwise law-abiding gun owners into instant felons.

There is no grace period for the new laws. When the bill goes into effect, anyone who has a lawfully-possessed gun under state law becomes a felon if they are in a newly created class of prohibited persons, such as those who possess a black powder gun and have been dishonorably discharged from the armed forces.

Creates a "data portal" with no privacy rules or means of correcting mistakes.

The bill creates a new way for authorities to enter information related to firearm disability into the background check database, but no rules to protect privacy and confidentiality or to prevent the misuse of these records. In addition, there is no mechanism to allow people to know what information about them is in the database or have mistakes corrected.

There are many other problems with this bill, including missing definitions, conflict with federal law, and unintended consequences that result in unfair and unconstitutional treatment of innocent gun owners.

For the foregoing reasons, BFA strongly OPPOSES HB 354 in total.