OLR Bill Analysis
AN ACT ESTABLISHING A PROCEDURE FOR RELIEF FROM CERTAIN FEDERAL FIREARMS PROHIBITIONS.
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 under a federally approved program. This bill establishes a court procedure for restoring firearm privileges lost because of a state adjudication or commitment. The procedure is similar to the federal procedure for restoring privileges lost as a result of federal adjudications and commitments.
Under the bill, anyone seeking to regain firearm privileges must petition the probate court for relief, and the court must have a hearing on any such petition filed in accordance with the bill's documentation and deadline requirements. In order to grant relief, the court must find by clear and convincing evidence that (1) the petitioner will not be likely to act in a manner dangerous to public safety and (2) granting relief will not be contrary to the public interest. The bill allows petitioners and the Department of Public Safety (DPS) commissioner to appeal the probate court's decision to the Superior Court.
EFFECTIVE DATE: July 1, 2011
RELIEF FROM FEDERAL FIREARMS DISABILITY PROGRAM
Petitioning for Relief
Under the bill, anyone seeking relief from federal firearms disabilities must submit a petition to the probate court along with certain releases (described below) and information supporting the petition, including:
1. certified copies of medical records detailing his or her psychiatric history where applicable, including records on the specific adjudication or commitment that is the subject of the petition;
2. certified copies of medical records from all of his or her current treatment providers, if he or she is being treated;
3. a certified copy of all criminal history information on file with the State Police Bureau of Identification and the FBI pertaining to the petitioner, or a copy of the response from these bureaus indicating that there is no criminal history information on file;
4. evidence of his or her reputation, which may include notarized letters of reference from current and past employers, family members, or friends; affidavits from the petitioner; or other character evidence; and
5. any other information or documents the court specifically request, which documents must be certified copies of original documents.
Releases and Petition
The petitioner must authorize the release of all of his or her records that may relate to the petition. This includes health, mental health, military, immigration, juvenile court, civil court, and criminal records, on forms prescribed by the probate court administrator. The releases must authorize the DPS commissioner to obtain any of these records for use at the probate court hearing or in any appeal from the probate court's decision.
The petitioner must ensure that the petition contains all required information when it is submitted to the court. After receiving the petition the court will consider additional information only if it requests it from the petitioner. Information it specifically requests must be received within 15 days of the request in order for it to be considered. The court may extend the deadline for good cause. Failure to provide the requested information by the deadline results in a denial of the petition.
The petitioner must provide the DPS commissioner with a copy of the petition and all supporting documents submitted to the probate court and certify to the probate court that he or she did so.
Once a petition is filed, the probate court must set a date, time, and place for a hearing. It must give notice of the hearing to (1) the petitioner; (2) the DPS commissioner; (3) the court that rendered the adjudication or commitment; (4) the conservator appointed for the petitioner, if any; and (5) anyone it determines has an interest in the matter.
The court must record the hearing. The recording must be transcribed only if the decision is appealed. A copy of the transcript must be furnished free to any appellant whom the court determines cannot pay for it. The cost of the transcript must be paid from Judicial Department funds. The DPS commissioner and anyone the probate court determines has an interest in the matter may present relevant information at the hearing and in any appeal.
In determining whether to grant relief, the court must consider the following:
1. the circumstances of the firearms disability;
2. the petitioner's record, which must include, at least, his or her mental health and criminal history records, if any;
3. the petitioner's reputation, which the petitioner must demonstrate through character witness statements, testimony, or other character evidence; and
4. any other relevant information provided by the petitioner, DPS commissioner, or anyone the probate court determines has an interest in the matter.
The petitioner has the burden of establishing, and the court must find, by clear and convincing evidence, that (1) the petitioner will not be likely to act in a manner dangerous to public safety, and (2) granting the relief will not be contrary to the public interest. (“Clear and convincing” means that it is highly probably or reasonably certain. Clear and convincing is a greater burden of proof than preponderance of the evidence, but less than evidence beyond a reasonable doubt (Black's Law Dictionary, 7th ed. ). The probate court must include in its decision the specific findings of fact on which it bases its decision.
The probate court proceedings are closed to the public and the court's records of the proceedings are confidential and not subject to disclosure except to the petitioner or his or her counsel and the DPS commissioner. But the probate court may, after notice to the parties and a hearing, disclose the records for good cause.
Appeals. The petitioner or the commissioner may appeal the probate court's final decision to the Superior Court. Any review of the probate court's decision must be “de novo,” which means that the court must take an independent look at the evidence.
Enforcement of any decision granting relief must be stayed until the period for taking an appeal expires or, if an appeal is taken, until the court renders a final decision. If the court grants relief and no appeal is taken or an appeal is taken and the decision is upheld, it must notify the DPS commissioner of its decision.
Updating Records. As soon as practicable after the court notifies the commissioner that it has granted relief, the commissioner must (1) coordinate the removal of or cancellation of the pertinent record in the National Instant Criminal Background Check System (NICS) and (2) notify the U. S. attorney general that the basis for the firearms disability no longer applies. (NICS is the federal database used in determining if prospective gun buyers are disqualified from acquiring or possessing firearms under state or federal law. )
Federal law prohibits various categories of people from transporting, selling, receiving, possessing, or shipping firearms. These include anyone who has been “adjudicated as a mental defective” or “committed to a mental institution” (18 USC §§ 922(d)(4) & 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. “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).
Federal Firearms Disabilities
In 2008, Congress passed the NICS Improvement Amendments Act (PL 110-108) a law to increase the number and types of records submitted to NICS on people prohibited from possessing or acquiring firearms under state or federal law. The act (1) required states to meet specified goals for submitting more complete records to NICS and authorized grants to help states comply and financial penalties (grant reduction) for noncompliance; (2) allows people disqualified on mental health grounds to petition to get their firearm privileges restored under a federally approved state program and (3) provides financial incentives to states that implement such programs and meet other requirements.
Public Act 05-283 required DPS to enter into a memorandum of understanding with the FBI to fully implement NICS in the state. It 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.