PolitiFact: Sunrise mayor’s statement about Baker Act half-true

Following the shooting at the Sandy Hook elementary school in Newtown, Conn., Sunrise Mayor Mike Ryan has become one of the leading advocates in Broward County for changing laws to improve school safety.

Ryan called for several gun control measures, including the need to address mental health and guns, in the political blog browardbeat.com.

“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, made in a guest column for the blog on Jan. 14, suggests that 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. We decided to check it out.

Under the Baker Act, law enforcement can take someone against his or her 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. (That number doesn’t account for people who voluntarily remained in facilities.)

We couldn’t find data regarding how often someone who is Baker Acted has a firearm taken.

“Most individuals don’t have weapons at the time of the Baker Act,” said Miami-Dade County Judge Steve Leifman, who chairs judicial committees on mental health.

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 specific 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 the gun.

For evidence of Ryan’s claim, he pointed us to a 2009 Florida attorney general’s opinion. It specifically 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, at least in some cases.

Miami-Dade requires a court order if the person used the gun to breach the peace but not if the medically cleared person didn’t use it to breach the peace, Det. Javier Baez said.

In Broward, gun owners must fill out paperwork and pay a filing fee that generally ranges between $55 and $300 depending on the cost of their gun. It usually takes 30 to 45 days to get a hearing. If the law enforcement agency doesn’t object, then a mediator signs off and the judge grants the order. Donna Johnson, manager of county civil court, estimated Broward has about six to 10 such hearings a year.

Statewide, few law enforcement agencies simply hand back guns, said Jon Gutmacher, an Orlando defense attorney and former Broward County prosecutor 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. The court must rule in their favor if it determines the person is not a threat to public safety.

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.

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 he is right that those who are released after a Baker Act evaluation are entitled to get their guns back, according to an attorney general’s opinion. But we also found that many law enforcement agencies require a court order, a process than can take several weeks.

He is also correct that people committed under the Baker Act are not included in databases for background checks on gun purchases. An evaluation under the Baker Act is not commitment or evidence of mental illness, and therefore the law stating that a commitment would preclude someone from having a weapon doesn’t apply.

Overall, we rate this claim Half True.