Topic:
PERMITS; MENTAL HEALTH; WEAPONS; MEDICAL RECORDS; FIREARMS; GUN CONTROL;
Location:
MENTAL HEALTH; WEAPONS - GUN CONTROL;

OLR Research Report


March 7, 2008

 

2008-R-0188

GUN LAWS AND MENTAL HEALTH REPORTS TO STATE AND FEDERAL AUTHORITIES

By: Veronica Rose, Principal Analyst

You asked (1) for a summary of a new Illinois gun law requiring reports of mental health data to state and federal authorities for use when processing gun licenses, (2) for a summary of Connecticut gun laws as they pertain to mental health issues, and (3) whether other states require reports of mental health information to state or federal authorities processing applications to get gun permits or acquire firearms.

SUMMARY

Beginning June 1, 2008, a new Illinois law requires all hospitals and mental health facilities to submit to the Illinois State Police all relevant mental health records of all patients who display “violent, suicidal, threatening or assaultive behavior” for the police to use when processing gun license applications. Under prior law, only private facilities had to provide the reports, and only on inpatients, not on outpatients. The new law also requires the State Police to forward records of people prohibited from acquiring or owning firearms under state or federal law to the FBI's National Instant Criminal Background Check System (NICS) database, which is essentially a national registry of people prohibited from buying or owning firearms that gun dealers must check before completing any firearm transaction.

Connecticut law contains a mechanism for the Department of Public Safety (DPS) to get information from the Department of Mental Health and Addiction Services (DMHAS) on the status of people who have been committed to psychiatric hospitals and who also have, or apply for, gun permits or certificates. The law also requires DPS, DMHAS, and the Judicial Department to enter into a memorandum of understanding (MOU) to provide mental health data to the NICS database, which the police must check when processing gun permit or certificate applications or authorizing firearm transfers. Another law allows the police to obtain a warrant to seize guns, following specified procedures and probable cause determination, from people they consider to be a danger to themselves or others.

In addition to Connecticut, California, Colorado, Utah, and Virginia, among others, require reporting of mental health data to a state database, the NICS database, or both.

A new federal law (Public Law 110-180) encourages states to report the necessary mental health data to the FBI by offering them more than $1 billion to improve reporting systems and address privacy concerns. (A copy and Congressional Research Service summary of the public law are attached.)

BACKGROUND

Since 1968, federal law has banned gun sales or transfers to, among others, anyone adjudicated as “a mental defective” or committed to a mental institution (18 USC 922(d)(4) & 27 CFR 478.11). Since 1993, it has required (1) states to report people prohibited from acquiring or possessing firearms to the NICS database and (2) federal firearm licensees (gun dealers), before completing firearm transfers, to check the database to determine if prospective purchasers are disqualified from receiving firearms under state or federal law. But a 1997 U.S. Supreme Court ruling effectively made state participation in NICS voluntary. In Printz v. U.S. (521 U.S. 898 (1997)), the court ruled as unconstitutional, under the 10th Amendment, federal attempts to compel states to contribute to a federal regulatory program, absent funding.

Citing mostly privacy concerns and, in some cases, state laws that prohibit sharing of mental health data, more than half the states have declined to provide, or provide only limited, mental health data to the NICS database, according to a 1997 FBI press release. California, Colorado, Utah, and Virginia are among the states that currently require the reporting of such data to a state database, the NICS database, or both. Illinois also will require the reports, beginning June 1, 2008.

ILLINOIS LAW PUBLIC ACT 095-0564

Illinois law bars anyone with a history of mental illness from getting a firearm owners identification (FOID) card to possess or acquire firearms or ammunition (430 Ill. Comp. Stat. 65/2(a)(1), (2)). The law applies to anyone (1) with mental retardation; (2) who was a patient of a mental institution within the past five years; or (3) whose mental state is so impaired that he is a clear and present danger to himself, others, or the community (430 Ill. Comp. Stat. 65/8). The law requires private hospitals to report all relevant mental health records on anyone receiving inpatient, but not outpatient, treatment to the State Police. The police must check the database when processing FOID card applications and may use the records only to determine whether an applicant is barred from getting a card based on mental health issues.

Public Act 095-0564, which takes effect June 1, 2008, expands existing law by requiring public and private hospitals and mental health facilities to report anyone receiving treatment (whether inpatient or outpatient) whose mental condition “is manifested by violent, suicidal, threatening or assaultive behavior,” presenting a clear and present danger to himself or others. They must report the information to the State Police within seven, instead of 30, days of admitting or providing mental health services to the patient. The act also requires the State Police and the state Department of Human Services to report patients to the NICS database.

Upon request by the State Police, gun license applicants must sign a release waiving any right to confidentiality and requesting disclosure to the State Police of “limited mental health institution admission information. . .” (430 ILCS 65/4).

CONNECTICUT GUN LAWS AND MENTAL ILLNESS

Mental Health and Gun Possession

Among those barred from possessing or acquiring handguns under state law is anyone (1) discharged from custody in the preceding 20 years after a finding of not guilty of a crime by reason of mental disease or defect, (2) confined by the probate court to a mental hospital in the 12 months before applying for a permit or certificate, or (3) prohibited from transporting or possessing firearms under federal law because he has been adjudicated as a “mental defective” or has been committed to a mental institution (except in cases where the Treasury Department grants relief from the disability) (CGS 29-28, 29-36f & 53a-217c). Among those barred from possessing or acquiring other firearms is anyone who falls under the federal prohibition above (CGS 53a-217).

Reports of Mental Health Data

DMHAS must maintain copies of probate court orders committing people to psychiatric facilities. When processing gun permit, certificate, or purchase applications, DPS must contact DMHAS to verify the commitment status of applicants. DMHAS must report the identifying information for anyone applying for, or holding, a certificate to possess an assault weapon, a handgun eligibility certificate, or a permit to sell or carry handguns. DPS must keep the information confidential but may use it as evidence in hearings concerning a refusal to issue or renew a permit or certificate (CGS 29-38b).

To help psychiatric hospitals consider their treatment for committed patients, DMHAS must inform them of any information DPS provides about patients' firearm permit or certificate status. The agencies and the hospitals must keep the information confidential (CGS 17a-500).

Mental Health Reports to NICS

The law requires DPS, DMHAS, and the Judicial Department to enter into a memorandum of understanding with the FBI to implement NICS in Connecticut, in accordance with state and federal confidentiality laws. It requires DPS to report to the NICS Index, Denied Persons Files, the name, date of birth, and physical description of anyone barred from possessing firearms under federal law (CGS 29-36).

The law took effect on October 1, 2005. The memorandum took effect in late 2006, and DMHAS has been sending the data to NICS through the State Police since mid-2007. DPS must contact the database when processing gun permit and certificate applications and gun transfers.

Seizure of Guns from People with Mental Illness

State law allows the police to seize guns under certain circumstances. It allows a state's attorney or the police, after conducting an independent investigation, to file a sworn complaint to the court, alleging probable cause to believe that a person possessing firearms poses an imminent risk of injury to himself or others and that the only reasonable alternative to prevent such harm is to seize the firearms.

In determining grounds and probable cause for issuing the warrant, the judge must consider any recent threat or violent act the person directed toward himself, others, or animals. In determining whether the threats or acts constitute probable cause to believe risk of injury is imminent, the judge may consider, among other things, if the person (1) recklessly used, displayed, or brandished a gun; (2) has a history of using, attempting, or threatening to use physical force against people; (3) was ever involuntarily confined to a psychiatric hospital; (4) abused alcohol; or (5) illegally used controlled substances. If satisfied that that probable cause exists and there is no reasonable alternative to prevent the person from causing imminent harm, the judge must issue the warrant (CGS 29-38c).

CALIFORNIA

California law bars people with certain mental health problems from possessing, purchasing, receiving, attempting to purchase or receive, or having control or custody of any firearms or ammunition. The law applies to anyone:

1. receiving inpatient treatment for a mental illness and considered by the attending mental health professional as a danger to himself or others;

2. who communicates to a licensed psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims (for six months from the date the psychotherapist reports the person's identity to the local law enforcement agency, unless the court grants relief);

3. adjudicated as (a) a danger to others as a result of a mental disorder or mental illness or (b) a mentally disordered sex offender (unless the court later certifies that the person may possess firearms without endangering others);

4. found not guilty by reason of insanity of (a) enumerated violent felonies or (b) other crimes (unless a court finds that the person has recovered sanity);

5. found mentally incompetent to stand trial (unless there is a subsequent finding of competence);

6. under a court-ordered conservatorship because of a grave disablity resulting from a mental disorder, or impaired by chronic alcoholism; or

7. (a) taken into custody and admitted to a facility because he is a danger to himself or others or (b) involuntarily committed for intensive treatment. The prohibition lasts for five years, but the person may petition the court for relief (Cal. Welf. & Inst. Code 8100 and 8103).

The law requires:

1. courts immediately to notify the state Department of Justice when they adjudicate someone as a danger to others as a result of a mental disorder or mental illness, a mentally disordered sex offender, not guilty of a crime by reason of insanity, or mentally incompetent to stand trial;

2. courts to notify the department when they place anyone under conservatorship because the person is gravely disabled as a result of mental disorder or impaired by chronic alcoholism;

3. mental health facilities immediately to report to the department when they take into custody anyone determined to be a danger to himself or others or certified for intensive treatment; and

4. licensed psychotherapists to report to local law enforcement officials the identity of anyone who communicates a serious threat of physical violence against a reasonably identifiable victim.

The records are confidential and may be used only for processing firearm permit applications or determining a person's eligibility to acquire, carry, or possess firearms (Cal. Welf. and Inst. Code 8103, 8104, 8105).

COLORADO

It is illegal for people to possess firearms, under Colorado law, if they are ineligible to possess firearms under federal law (Colo. Rev. Stat. 18-12-203(1)(c)).

Court clerks must report periodically to NICS the name of anyone:

1. determined by the court to be incapacitated;

2. committed to the custody of the Division of Alcohol and Drug Abuse in the Department of Human Services;

3. ordered for involuntary certification for short-term treatment of mental illness;

4. ordered for extended certification for treatment of mental illness; or

5. ordered for long-term care and treatment for mental illness (Colo. Rev. Stat. 13-5-142, 13-9-123).

UTAH LAW

A person cannot legally acquire or possess firearms in Utah if he has been (1) found not guilty by reason of insanity for a felony; (2) found mentally incompetent to stand trial for a felony; (3) adjudicated as a “mental defective,” as provided under the federal Brady law; or (4) committed to a mental institution (Utah Code Ann. 76-10-503(1)).

Utah law requires courts to report (1) civil involuntary commitment orders and judgments of “guilty and mentally ill” or not guilty by reason of insanity and (2) findings of incompetence to stand trial for enumerated crimes to the state criminal record database (Utah Code Ann. 53-10-208.1).

VIRGINIA

Virginia prohibits people from acquiring or possessing firearms if they were (1) acquitted by reason of insanity and committed to the Department of Mental Health, Mental Retardation, and Substance Abuse Services for enumerated crimes; (2) involuntarily committed to a mental facility because of a mental illness; or (3) adjudicated legally incompetent, mentally incapacitated, or incapacitated (unless competency is restored) (Va. Code Ann. 18.2-308.1:1, 18.2-308.1:3, & 18.2-308.1:2).

The law requires the courts to send to the State Police certified copies of all orders (1) requiring an involuntary commitment to a mental health facility, (2) containing a finding that an individual is incapacitated (as defined by state law), or (3) restoring capacity. Copies of the orders are confidential and may be used only to determine a person's eligibility to possess, purchase, or transfer firearms (Va. Code Ann. 37.2-1014 and 37.2-819).

In response to the Virginia Tech shooting incident, Virginia Governor Timothy Kane, on April 30 2007, issued Executive Order 50, directing the State Police to (1) request orders for both involuntary inpatient and involuntary outpatient care from district courts; (2) include the information in the state Central Criminal Records Exchange which is checked prior to firearm sales; and (3) share the information with federal authorities for inclusion in the NICS database. Anyone ordered by the court to receive involuntary inpatient or outpatient mental health care is barred from purchasing firearms until his right to own firearms is restored. (A copy of the order is attached.)

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