The following post reflects comments made to the House Judiciary Committee by NPD Legislative Analyst Aarika Nelson at the hearing on May 17th. The hearing began at 11a and took place in the House Chamber at Leg Hall in Dover.
Ms. Nelson presented brief comments to the committee in light of the time constraints and the crowd. This post will go into more detail on the points raised in her testimony based on an analysis of SS1 to SB2, as well as similar legislation presented in previous sessions of the General Assembly. Ms. Nelson identified three key areas where NPD's analysis found SS1 to SB2 problematic in its explicitly written or likely interpreted implementation:
- Cost to applicants to complete requirements;
- Time delays to applicants in urgent need of protection; and
- Privacy concerns rooted in SBI's explicit authorization to retain applicant PII.
To cover each item in turn:
Cost
It's worth noting that SS1 to SB2 in this General Assembly is an improvement over the legislation released from Committee in the last session. Despite that bill being released, it was never brought to a vote, and the updates to the legislation in this session's version suggest that the concerns about the costs to applicants to meet the permitting requirements were given some consideration.
While the previous version of the bill had many of the same requirements, this version includes a voucher program to cover the full cost of the required training classes for individuals in households earning less then 200% FPL. The downside is that this adds ~$1.72m to the fiscal note by assuming 9,800 qualified applicants and classes costing $175/ea. This cost estimate will be inaccurate if additional applicants qualify for vouchers above what is estimated or if a shortage of classes drives the cost above the estimated $175. There are no limitations specified in the bill itself as to what the cost of these vouchers might become, the fiscal note is based on these estimates by assuming the number of people who will qualify and the full cost of the class that is required to be covered.
The reasoning presented by the bill's opponents in the previous session, that the costs of meeting these requirements created an artificial financial obstacle to the exercise of a fundamental right. Whether proponents found the moral or the legal justification compelling, or just the cost excessive, the bill last session was halted and the bill this session includes vouchers for the classes.
However there are still significant costs imposed on applicants for these permits. Individuals from households earning more than 200% FPL, even if they don't actually have the ability to access those funds, will be responsible for the full price of the class, and every applicant will be fully responsible for the cost of the background checks which will be required annually even while the classes are only required every five years.
With the cost of the SBI background checks expected to increase to ~$80, the total cost of over $250 to individuals in households earning more than 200% FPL would serve to double the cost of some basic handguns, continuing to keep gun ownership out of reach for many individuals, and maintaining that particular cost even in the event a handgun is given to them as a gift or a temporary loan by a friend in recognition of a pressing need for self defense.
To address this issue, NPD suggests that the General Assembly consider amendments to address the cost for all applicants, regardless of financial status, including both the classes and the required background checks.
Not only do the background checks serve the purpose intended by this legislation, but they can also be utilized in the event an applicant is denied by some mark on their criminal background check or even has other offenses that are not disqualifying for the permit but may be eligible for pardons or expungements as well.
Encouraging the public to participate in gun safety courses could also be interpreted as an advancement of public policy goals by ensuring the broader public, even if they do not use guns regularly, are familiar with their safe basic operation and storage and how to handle one properly if they encounter it.
Covering these costs has value independently of their utility to satisfy these requirements.
The simplest way to expand the coverage for permit requirement costs with the existing bill would be to simply expand the voucher program to explicitly cover the background checks and the classes for all applicants.
Vouchers are already issued by several government programs including APEX through the Department of Labor to get background checks for clients, so the backend infrastructure for ensuring the proper budgetary controls are recognized over the funds already exists.
The bill already envisions the creation of the voucher program for the classes.
Expanding the availability is simply a matter of funding at that point. Of course with the existing fiscal note estimating 85,000 applicants in total in its consideration of additional staffing needs, 85,000 applicants worth of vouchers and background checks will cost more than the mere 9,800 vouchers for classes alone.
Another option would be to offer the courses directly through the State.
The bill already authorizes applicants to reference classes offered by colleges and police agencies to meet their permit requirements, but the bill makes no provision for the classes to be offered by these institutions. Even limiting their availability this option is likely to prove cheaper and more reliable in the long run.
A statute that guarantees vouchers will cover the full cost without regard for what that cost might be are likely to find the cost of classes increasing. Private providers have little incentive to keep costs down if the State will cover it. Anyone not eligible for vouchers will be caught up in the increasing prices or face long wait times.
Hiring as little as 14 additional FTEs to handle the classes themselves would easily cover the estimated demand with class sizes of 20 applicants/day for each day of the year providing capacity for up to 100k applicants, and a few additional employees to account for the load at SBI that is not being compensated for the background checks, and the existing estimate for additional staff on the fiscal note suggests a much lighter price tag than simply expanding the vouchers.
A cap in the bill instead, along with either of these measures, to limit the cost of meeting the requirements to some low flat rate or tied to the value of the first purchase could reimburse some of these costs while guaranteeing that even those not exempted by household income or other metrics do not face prohibitive expenses.
Time
Whether or not one has the privilege not to worry about cost, one could always find themselves without the privilege of time.
It's worth noting at this point that a possible and even likely side effect of this legislation, as it's currently written, is that county prothonotary offices will become even more overwhelmed with CCDW permit requests.
According to several individuals in the gun community consulted by NPD, the class requirements for a CCDW are actually less demanding than the class requirements for the permit to purchase. A CCDW permit is good for five years and can be renewed indefinitely without taking the class again. The only other additional requirements for a CCDW are relatively trivial to accomplish and a CCDW permit is functionally equivalent to a five year permit to purchase compared to the one year permit established by this legislation. Individuals who purchase handguns often will be more likely following this legislation to seek CCDW permits and will delay the issuance of permits to everyone, including those who may have a more pressing need for them.
This also suggests another possible cost savings option of aligning the permit to purchase requirements with the existing requirements for the CCDW permits. The classes already exist and have been deemed sufficient to only take once, and the five year time period good enough for one might be adequate for the other.
In addition to this potential unintended consequence, passage of this legislation in its current form could potentially lead to additional obstacles to handgun ownership at a critical and needed moment in a crisis period in a person's life.
One of the more concerning issues with the specific wording of the current bill concerns the deadline for processing applications. While the legislation requires applications to be approved within 30 days, the way the language is written leaves wide latitude on the timeline for applications that are "believed" to have a reason for denial. The 30 day deadline only applies to sure thing approvals. An amendment should address this point in particular by requiring all applications to be returned within 30 days and allowing the appeal process to begin at that point regardless of whether or not that requirement has been met by the State.
Even with such an amendment, the 21 days allowed for a JP Court appeal and the additional 15 days allowed for a Superior Court appeal, even discounting the 30 days and 15 days respectively provided to prepare those appeals, following the 30 days to process the application initially could result in up to an additional 66 days before a valid application that will ultimately be accepted results in an issued permit. Recognizing the realities that at least some if not all of these requirements are critically (at least politically) important, even if they cannot be waived, an expedited and/or provisional approval process that allows requirements to be met or at least verified after a permit is issued, or some provision to begin the appeal process early, or some other option to offer a safety hatch to individuals with credible threats against their safety should be available.
An objective standard such as the existence of a PFA or a recently filed police report could fulfill the requirement, or even some kind of emergency hearing process similar to what already exists in family court for a PFA or emergency custody order if a burden of proof is met.
Even in states where statistics presented by advocates suggest a clear benefit to public safety from adopting permit to purchase requirements, outlier incidents persist where individuals threatened by abusive ex-partners, stalkers, or other menaces have been harmed and even killed waiting for the permits to be issued so they could legally acquire the means to defend themselves.
Let us please not have that happen here.
Privacy
As a final issue raised in the public comments but by no means intended to serve as a final word, a specific provision in the bill would seem to be at odds with federal law that has been applied and found binding against the states preventing the establishment of a "registry".
Aside from whether or not the provision explicitly allowing the SBI to retain records on applicants with no apparent limit constitutes a "registry" or not for the purposes of a judicial review, individuals in all communities have some justification to be concerned about the privacy risks inherent in creating such a data store as well as the potential for this data to become a catalog of ex post facto coerced self-incriminations.
NPD is an organization focused primarily on Delaware law and Delaware policy. Our familiarity and ability to analyze the retention of this information as a "registry" under the federal statutes is limited beyond raising it as a concern and trusting that people who know better know where the line is.
Regardless of whether or not the legislature can do this, the question must be asked whether or not they should.
Even with the best of intentions and giving no credibility to slippery slope arguments about future policy changes, security measures fail. Hackers getting a ready made list of individuals known to have permits to purchase firearms and perhaps even records of valid verifications to confirm the purchases themselves would be a valuable target list for burglars or a handy exclusion list for home invaders.
NPD will not speculate that bill sponsors intend to create a registry for the explicit purpose of utilizing the information after a future policy change as a list of individuals who have, before the act they confessed to committing was a crime, incriminated themselves under duress. While the fourth and fifth amendment implications of that case as they interact with the Article I, Section 9 prohibition against ex post facto laws might be interesting from an academic standpoint, it isn't unreasonable from a political point of view to recognize that such a case would not be pleasant for the defendant litigating it.
The easy solution is to remove the provision that allows the SBI to retain records, and instead replace it with language requiring the SBI to expunge any records upon the expiration of the permit or upon request by the applicant to expire the permit early.
Assuming that the verification process required under this version of the legislation and the revocation capabilities imagined by this version and the version in the previous session, it isn't realistic to assume that no data can be retained at all for any period of time and still meet the aims of the sponsors.
The previous version was a bit more forgiving of private sellers who might be mislead by a fake permit, only requiring them to provide a copy of the permit with which they're presented, but this version requires the verification of a "valid" permit. The mechanism for doing so isn't clear, but the assumed method in the context of this suggestion is that the permit itself will have to be called in and verified manually with the issuer.
Even without that requirement, becoming aware of an incident rendering an applicant ineligible for an existing permit requires tracking who a permit belongs to and retaining the ability to invalidate it and contact the applicant to inform them of the new status. This information is not needed, however, once the permit has expired or the applicant acknowledges that they have no further need of it.
Recommendations
To reiterate, Non-Partisan Delaware is not taking a position on whether or not this bill should pass and become law.
Our Governing Board has expressed severe reservations about the effectiveness of this bill and whether it will merely serve as an empty gesture of "doing something" in lieu of more effective actions to address the violence that occurs in this country and specifically in our State. Even greater concern, however, was addressed towards the unintended consequences that our analysis has identified as potentially resulting from this bill due not to its nature, but due to the specific details of its implementation that we hope we have been able to suggest fixes for that are faithful to the original intent of the bill's authors and sponsors.
We are willing and eager to work with the bills sponsors on friendly amendments, but will also work on less friendly amendments if necessary. Any amendments offered or supported by us from whatever legislative source will still be intended by us in good faith to ensure that whether this legislation will be helpful or not, in recognition of the belief among many of our friends and allies that it will, our sincere hope is only to mitigate what we see as the potential for harm.
Thank you.
Will McVay,
Legislative Analyst,
Non-Partisan Delaware.
