CATEGORY: Law Loophole

The loophole in John Cornyn’s new law that won’t stop the mentally ill from buying guns

john-cornyn-new-lawWhether you are on the side that thinks Cornyn’s proposed new law to tie money for mental health to gun purchase restrictions is great for public safety or a travesty for freedom, you should be aware that there is a very large loophole present in the law that few people are mentioning. On closer inspection, the law may not present much of a change for anyone and could qualify as a red herring. There are only certain people the law would affect and the percentage of those people that commit gun violence is rare.


What the law proposes to do

The law is a watered down version on tightening restrictions on background checks for gun purchasing. The ideal is to increase the self-reporting of states to the federal database of those who have been declared mental incompetent through being committed for psychiatric treatment. As stated in all of the press releases about this definition it covers most of the people who are either living in residential treatment homes or are in forensic prison units. The law would then also require all dealers to check the database before approving the purchase of a firearm.

The first problem lies with the definition of who to ban from owning guns

If you look at the past decade of gun violence and mass murder in the US you will discover that the majority of the perpetrators all had a serious mental illness. However, a very low percentage of the perpetrators were considered to be legally mentally defective or have been committed to mental institutions in their lifetime. You must remember that the act of commitment is involuntary and comes with a limited hold allowance on the person. Outside of forensic sentencing, most law agencies and social welfare agencies will commit a person for observation and that commission then evolves into a voluntary stay in a mental institution. The mentally ill who have been committing the greatest acts of gun violence have rarely been institutionalized, although they may have a history of care.


More disturbing is the other parts of the definitions

While no one will argue with the expanded definition including reporting violent criminals to the database to prevent sales, many people will take issue with the required reporting of substance abusers to the database. The inclusion of a person in the database would also appear to be a lifetime ban. There is no statement of process for removal of the name or challenge of the submission of a name. For a recovered substance abuser, this can be a gross violation of their civil rights.


The payback issue

Also at issue is the tie to grant monies for reporting. The incentive style payment plan of providing more money to law enforcement officials for education and training on interventions with the mentally ill is something that is contentious. Incentive based funding has a history that is less than spotless in encouraging accurate and accountable reporting methods. The inclusion of social workers as reporters in the new system also gives rise to questions about discriminatory practices. While the law encourages the reporting of domestic abusers, substance abusers and the mentally unstable it pays lip service to a legal definition of criminal findings against the person for those charges. By including social workers and tying incentive grant monies for mental health care there is a potential for people to be motivate to report those who have not been legally found guilty of a qualifying crime or state as is supposed to be required by this law, in that case you should look for the best personal injury attorney for your case.This is a compromise law that promises to spend most of its life in the appeals courts, if it makes it fully to life as law at all.

Fixing the loophole for solar power in Texas could have a wider impact

texas law for solar panelSenate Bill 1626 went through the legislature in Texas with hardly any complaint and much rejoicing from solar energy advocates in Texas. The bill closed one of the oldest loopholes in Texas law that permitted neighborhood and condominium associations to block the installation of solar panels on homes. While this is good news for solar power fans, there is a chance that the closing of this loophole may have a much broader impact. The win for environmentalists and alternative energy advocates may wind up depressing home values and increasing frivolous lawsuits. As the law passes into effect, the landscape in Texas is going to change in many different ways.


What the loophole allowed

While Texas law does limit what a neighborhood or condominium association can prohibit in their neighborhoods, there has been one loophole that has always allowed a way around the limits. The loophole allowed the developer to maintain semi control on the neighborhood structures by placing them into an unending determination of still being “under development.”  As such, no changes – such as the addition of solar panel systems to roofs- could be added without the developer’s permission. This has allowed associations to effectively ban solar power for fear it would destroy the visual appeal of their neighborhoods. While this may seem an old fashioned view, it does hold some modern power when you begin to consider the role housing prices play in the overall state economy.


With the loophole closed more residents can avail themselves of solar power

With the loophole officially closed more Texan households can avail themselves of solar power, and the state incentives to install solar power systems. This could help relieve the stress on the infrastructure that has led to wide scale brownouts and blackouts in many regions. Solar power has long been encouraged with tax benefits from federal and state sources. In an area which is prime for solar energy collection, it only makes sense that it would be encouraged and not prohibited. It would appear to be a win-win situation for all involved (except appearance obsessed associations) except for one small fact.


Closing that loophole leaves the associations virtually powerless

Current Texas law limits the ability of associations to prohibit changes to structures and land within their agreed association areas. The loophole which declared associated areas under perpetual development was used not only to prevent installation of solar panels, but also the addition of some other structures and changes that could be deemed questionable at best. Without the presence of this loophole associations lose much of their power in being agents working to guarantee stable home values. This could lead to a deflation in property values in key areas in parts of Texas, and an increase in property disputes.


What you choose to do in your home is one thing, outside it is another

From cases that range from large statues being installed on lawns that extend a middle finger in full view of the living room windows of the house next door to homeowners constructing windmills to provide energy and threaten the safety of properties nearby – the loophole has been used to prevent cases from burdening the court. While it is accepted that what you do within your home is within your own province, what you are allowed to do on the property of your home has just become unregulated. Expect to see more cases and charges about disturbing the peace, public endangerment and trespassing to rise as the new law takes effect. It may be years before amendments are created to fill the gaps that were once broadly covered by the perpetual development loopholes.

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