by Evan F. Nappen, Attorney at Law |
Should the police prevent abuse, neglect, or exploitation of the elderly? HB 696 is a bill designed to do just that. But should gun owners panic? Here is what HB 696 actually says, with no hype, no hyperbole, and no “sky is falling” drama.
173-D:11 Protection by Peace Officers.
I. Whenever any peace officer has probable cause to believe that a person has been abused, exploited, or neglected, as defined in RSA 161-F:43 and RSA 173-D:2, that officer shall use all means within reason to prevent further abuse, exploitation, or neglect including, but not limited to:
(a) Confiscating any deadly weapons involved in the alleged abuse, exploitation or neglect. (Emphasis added)
(b) Transporting or obtaining transportation for the victim to a place of safety, local family member, or friend.
(c) Assisting the victim in removing toiletries, medication, clothing, and any other items determined by the court.
(d) Giving the victim immediate and written notice of the rights of victims and of the remedies and services available to victims of abuse, exploitation and neglect. The written notice shall include a statement substantially as follows:
“If you are the victim of abuse, exploitation and neglect and you believe that law enforcement protection is needed for your physical safety, you have the right to request that the officer assist in providing for your safety, including asking for an emergency telephonic order for protection. You may also request that the officer assist you in obtaining from your premises and curtilage, toiletries, medication, clothing, business equipment, and any other items as determined by the court, and in locating and taking you to a local safe place including, but not limited to, a place of safety a family member’s or friend’s residence, or a similar place of safety. If you are in need of medical treatment, you have the right to request that the officer assist you in obtaining an ambulance. You may request a copy of the report filed by the peace officer, at no cost, from the law enforcement department.”
As a Pro-2A activist, I do not feel the least bit threatened by this bill. The elderly need special protection because they are particularly vulnerable. It is easy to distinguish between unlawful use of a deadly weapon and mere possession. Bad guys unlawfully use deadly weapons, good guys do not use deadly weapons to abuse, exploit or neglect the elderly, or anyone else for that matter.
HB 696 does not violate our Constitutional rights concerning search and seizure because it requires that the deadly weapon “be involved” in the abuse, exploitation, or neglect. Confiscating all guns is not allowed. The deadly weapons themselves must be evidence of a violation of the law. Such “involved” weapons should be confiscated to “prevent further abuse” as required under HB 696. Who in their right mind thinks it’s a good idea to leave them accessible to the abuser?
The police coming onto a potential crime scene may very well have the right to seize deadly weapons used unlawfully even without this law. Under a myriad of exceptions to the warrant requirement, such as plain view, exigent circumstances, search incident to lawful arrest, consent, and caretaker function, a warrant is often not necessary, and the search is still legal. As with any property seized, the Court may return the property if it was not contraband and no longer needed as evidence.
With the passage of HB 696, the Constitutional protections against unlawful search and seizure do not disappear in a puff of smoke. Those rights are still fully enforceable, and that is why the officer must, under the bill, only “use all means within reason.” If the officer acts unlawfully, the Constitution is still there to guarantee our rights, but with HB 696 a needed tool is created to protect the elderly that is not in any way a threat to law-abiding gun owners.