November 10, 2010
OLR BACKGROUNDER: RELIEF FROM FEDERAL FIREARM DISABILITIES ON MENTAL HEALTH GROUNDS
By: Veronica Rose, Chief Analyst
In 2008, Congress passed a law to increase the number and types of records submitted to the National Instant Criminal Background Check System (NICS), the federal database used in determining if prospective gun buyers are disqualified from acquiring or possessing firearms under state or federal law. The law, known as the NICS Improvement Amendments Act of 2007 (NIAA), (1) allows people disqualified on mental health grounds to petition to get their firearm privileges restored and (2) provides grants to states to increase the number and types of records they submit to NICS. This report provides background information on these laws and issues involved in their implementation.
Federal law prohibits anyone who has been “adjudicated as a mental defective” or “committed to a mental institution” from shipping, transporting, receiving, or possessing firearms or ammunition, unless the person's firearm privileges are restored. One way to get such privileges restored is to petition for relief from this disability under a federally approved state program.
The NIAA (Pub. L. 110-180) provides financial incentives to states that implement such programs and meet other requirements to submit to NICS complete records on people prohibited from acquiring or possessing firearms under state or federal law. NICS is the federal database used in conducting criminal background checks on prospective gun purchasers to determine their eligibility to acquire or possess firearms under state and federal law. The NIAA grants are to help states automate and provide NICS with complete arrest, conviction, mental health adjudication and other pertinent records.
Public Act 05-283 required the Connecticut Department of Public Safety (DPS) to enter into a memorandum of understanding with the Federal Bureau of Investigation to fully implement NICS in the state. The act required DPS to report to NICS the name, date of birth, and physical description of people barred from possessing guns under federal law, including those barred on mental health grounds. But the state has not adopted a relief from disability program and consequently is ineligible for funding tied to the adoption of such a program. The 2010 legislature considered, but did not pass, legislation that would have created such a program (Raised Bill 458).
In FY 10, eight states met the criteria for NIAA funding: Florida, Idaho, Illinois, New Jersey, New York, Oregon, Texas, and Wisconsin. They received grants totaling $16,906,134 (http://www.ojp.usdoj.gov/newsroom/pressreleases/2010/BJS10119.htm).
FEDERAL FIREARM PROHIBITIONS ON MENTAL HEALTH GROUNDS
Federal law prohibits various categories of people from transporting, receiving, possessing, or shipping firearms (18 USC § 922 (g) and (n)). These include anyone who has been “adjudicated as a mental defective” or “committed to a mental institution” (18 USC § 922(d)(4) and 18 USC § 922(g)(4)).
Under federal regulations, “adjudicated as a mental defective” means a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetence, condition, or disease (1) is a danger to himself or herself or others or (2) lacks the mental capacity to contract or manage his or her own affairs. The term includes a finding of incompetence to stand trial or not guilty by reason of insanity or lack of mental responsibility. The term “committed to a mental institution” means a formal commitment by a court, board, commission, or other lawful authority. It includes involuntary commitments for mental health issues or other reasons, such as drug use. It does not include people admitted voluntarily or for observation (27 CFR § 478.11).
The NIAA was enacted on January 8, 2008 (Pub. L. 110-180). It amended the Brady Act, which mandated the establishment of NICS. NICS is a computerized database used in conducting instant criminal background checks on prospective gun buyers to determine if they are barred from possessing or receiving firearms under state or federal law. The Brady Act (with some exceptions) requires federal firearm licensees (FFLs) to request a NICS check before transferring firearms to unlicensed people (18 USC § 922(t)).
The NIAA was enacted in the wake of the 2007 Virginia Tech mass shootings to increase the number and types of records submitted to NICS and improve the mechanism for submitting them. On April 6, 2007, a student with a history of mental illness shot to death 32 students and faculty members, wounded 17 others, and took his own life. The shooter was able to buy firearms from a FFL because his disqualifying mental health record was not in the NICS database.
Among other things, the NIAA:
1. established affirmative defenses to the mental health disqualifying condition, thereby allowing people to regain firearm privileges revoked on mental health grounds;
2. required states to meet specified goals for submitting more complete records to NICS and authorized grants to help states and penalties for noncompliance; and
3. required states, as a condition of eligibility for NIAA grant funds, to (a) provide the U.S. attorney general with a “reasonable estimate” of records subject to the act's completeness requirements and (b) establish a relief from disabilities program certified by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATF).
Affirmative Defenses to Mental Health Disqualifying Condition
Prior to NIAA's passage, the ban on people disqualified from receiving or possessing firearms on mental health grounds was permanent. Under NIAA, a person can regain firearm privileges if he or she is granted relief by (1) BATF or (2) a proper state or federal authority under a program that meets NIAA requirements. A person can also regain privileges if the mental health adjudication or commitment was imposed by a federal department or agency and:
1. the adjudication was “set aside or expunged”;
2. the person was “fully released or discharged from mandatory treatment, supervision, or monitoring”;
3. a lawful authority has found the person no longer suffers from the disqualifying mental health condition;
4. the person has been rehabilitated “through any procedure available under law”; or
5. the adjudication or commitment was based solely on a medical finding of disability without a hearing before a lawful authority
(Pub. L. 110-180 § 101(c)(1)).
Completeness of Records
The NIAA requires states to meet specified goals for automating and submitting to the NICS database complete criminal history and other records on people barred from possessing or receiving firearms under state or federal law. The records include (1) warrants, (2) protective orders, (3) convictions for misdemeanors involving domestic violence and stalking, (4) mental health adjudications and commitments, (5) drug arrests and convictions, and (6) other records that may disqualify a person from possessing firearms under law.
Relief From Disability Programs
The NIAA requires state relief programs to meet specified criteria. Among other things, they must:
1. be established by state law or regulation or order under state law (Id., § 105(a)(2));
2. allow people formally adjudicated as mentally defective or committed involuntarily to a mental institution to petition for relief (Id., § 105(a)(1));
3. require that relief is granted in accordance with due process (including adequate notice, right to counsel, and opportunity to respond) by a state court, board, commission, or other lawful authority (Id., § 105(a)(2));
4. ensure that relief is based on a finding that (a) the person's record and reputation are such that he or she is not likely to act in a manner dangerous to public safety and (b) it is not contrary to the public interest (Id., § 105(a)(2)); and
5. allow people denied relief to petition for judicial review
(Id., § 105(a)(3)).
When a state grants a relief application, the adjudication or commitment that rendered the person ineligible to possess or acquire firearms is “deemed not to have occurred” for purposes of federal law
(Id., §105(b)). Also, when a state learns that the basis on which records were made available does not apply, or no longer applies, it must, as soon as practicable, (1) update, correct, modify, or remove the records from any database that the federal or state government maintains and makes available to NICS, consistent with the rules pertaining to the database, and (2) notify the U.S. attorney general so that the database in which the record is maintained is kept up to date (Id., § 102(c)(1)(B)).
More details are at: State Relief from Disabilities Program Criteria.
NIAA INCENTIVES TO ENCOURAGE RECORD REPORTING TO NICS
The NIAA provides incentives for states to meet the goals it sets for record submission.
First, beginning in 2011, the NIAA allows states to obtain a waiver of the 10% matching requirement for National Criminal History Record Improvement Program's (NCHIP) grants if they provide at least 90% of their relevant records, at least once every two years, identifying people barred from receiving or possessing firearms (Id., § 102). NCHIP grants are federal grants made to states and localities to upgrade their criminal history record information systems.
Secondly, the NIAA allows the U.S. attorney general in some cases, and requires him in others, to decrease grant money to states under the Omnibus Crime Control Act by certain percentages, annually, until the state implements a program. The attorney general may waive the mandatory penalties for states that provide substantial evidence that they are trying to comply (Id., § 104).
Thirdly, NIAA authorizes the attorney general to make grants to states to improve the quality, completeness, and accessibility of records, including mental health information, available to NICS (Id., § 103(a) and 103(b)). In order to be eligible for these grants, a state must implement a “relief from disabilities” program that meets NIAA's requirements (Id., § 103(c)).
State questions and requests for assistance can be directed to ATF at NIAAReliefProgram@ATF.gov.
FY 10 NIAA GRANTS TO STATES
In FY 2010, the Department of Justice (DOJ) appropriated approximately $17 million in grants to states that met NIAA requirements. Table 1 shows the states and grant amounts.
Table 1: NIAA Grants in FY 10
Source: DOJ press release, September 13, 2010
● 18 USC § 922 (g) and (n); (18 USC § 922(d)(4); 18 USC § 922(g)(4)
● 27 CFR § 478.11
● National Criminal History Record Improvement Program's (NCHIP)
● National Instant Criminal Background Check System (NICS)
● NICS Improvement Amendments Act of 2007
● Public Act 05-283
● Pub. L. No. 110-180 (Id., § 101(c)(1); Id., § 102(c)(1)(B);
Id., § 103(a) and 103(b); Id., § 103(c); Id., § 104; Id., § 105(a)(1);
Id., § 105(a)(2); Id., § 105(a)(3); Id., §105(b))
● Raised Bill 458
● State Relief from Disabilities Program Criteria