Federal Law on Mental Health Reporting

Posted on May 21, 2012

The Gun Control Act of 1968 prohibits any person from selling or otherwise transferring a firearm or ammunition to any person who has been “adjudicated as a mental defective” or “committed to any mental institution.”1 Such persons are prohibited from possessing firearms.2

According to federal regulations, a person has been “adjudicated as a mental defective” if a court, board, commission or other lawful authority has determined that he or she, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: 1) is a danger to himself, herself, or others; or 2) lacks the mental capacity to contract or manage his or her own affairs.3 The term “adjudicated as a mental defective” explicitly includes a finding of not guilty by reason of insanity or incompetence to stand trial.4

Federal regulations define a person as “committed to a mental institution” if a court, board, commission, or other lawful authority has formally committed the individual to a mental institution.5 The term is defined to include involuntary commitments, but does not include persons who are admitted to a mental institution voluntarily or for observation.6 The term includes commitments for mental defectiveness, mental illness, and other reasons, such as drug use.7

The Brady Handgun Violence Prevention Act (the “Brady Act”) requires licensed dealers to request a background check prior to transfer of a firearm.8 Background checks are performed through a search of the National Instant Criminal Background Check System (“NICS”).9 In most states, dealers request background checks by contacting the FBI, which performs these background checks by searching NICS.10 Only 13 states – called Point of Contact states – require dealers to contact a state agency, which searches NICS as well as other in-state databases for information regarding the prospective purchaser.11 For more information, see the section on Background Checks.

The NICS system includes three federal databases; two of these – the Interstate Identification Index (“III”) and the NICS Index – contain information used to determine whether a person is disqualified from possessing firearms on the basis of mental health. The III includes mental health information that states have reported to the FBI as part of their criminal history records, such as findings of not guilty by reason of insanity or incompetence to stand trial. The NICS Index includes two files into which federal agencies and the states can enter information about individuals who have a disqualifying mental health history – the Mental Defective File and the Denied Persons File.12 The Denied Persons File includes the names of individuals who are prohibited from purchasing a firearm but does not identify the reason they are prohibited.13 Hence, states may avoid transferring private mental health information by identifying persons to NICS as prohibited purchasers without indicating that they are denied due to a mental health history.14

Federal law does not require states to submit mental health information to NICS; participation is strictly voluntary.15 There is considerable uncertainty regarding whether a federal statute requiring states to disclose mental health records to the FBI would violate the Tenth Amendment to the U.S. Constitution. In Printz v. U.S., a 5-4 decision, the Supreme Court struck down the interim provisions of the Brady Act obligating local law enforcement officers to conduct background checks on prospective handgun purchasers.16  The Court held that Congress cannot compel state officials to enact or enforce a federal regulatory program.17

Effective background checks on prospective firearm purchasers depend on having complete, accurate information in the NICS database. Therefore, to fully capture all records that would disqualify someone under federal law from purchasing or possessing firearms due to mental illness, state law should require the reporting of such information to NICS whenever a court, board, or other lawful authority:

  • Determines that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease, is a danger to himself, herself, or others (even if that person is not involuntarily committed to a mental institution as a result);
  • Determines that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease lacks the mental capacity to contract or manage his or her own affairs (depending on state law, this may include a finding that a person is “incapacitated” or disabled by mental illness, or it may result in the appointment of a guardian or conservator);
  • Finds a person not guilty by reason of insanity, mental disease or defect, or lack of mental responsibility in a criminal case;
  • Finds a person guilty but insane in a criminal case;
  • Finds a person incompetent to stand trial; or
  • Formally commits a person involuntarily to a mental institution or asylum for mental defectiveness, mental illness, and other reasons, such as drug use.18

Note that state laws may prohibit additional categories of persons from purchasing or possessing firearms on the basis of mental illness. Detailed information on these laws is contained in the section on Prohibited Purchasers Generally.

Federal and state privacy laws are frequently cited as reasons why states do not provide complete mental health records to the FBI.19 However, the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and implementing regulations restrict disclosure of protected health information only by health care plans, providers, and clearinghouses.20 In addition, HIPAA and its regulations permit any disclosure made:

  • When authorized by the patient;
  • When required by law, including state law;
  • For a law enforcement purpose in response to a relevant and specific request from a law enforcement official; or
  • To prevent or lessen a serious and imminent threat to the health and safety of a person or the public.21

State privacy laws are similar.22 (The Law Center has not conducted an independent survey of all 50 states’ privacy laws with respect to mental health records.)

In addition, federal regulations include requirements to ensure the privacy and security of mental health records that have been submitted to NICS. Access to data stored in NICS is tightly controlled, and safeguards protect against unauthorized disclosures.23

NICS Improvement Amendments Act of 2007: In January 2008, President Bush signed into law the NICS Improvement Amendments Act of 2007, which, among other things, provides financial incentives for states to provide to NICS information relevant to whether a person is prohibited from possessing firearms, including the names and other relevant identifying information of persons adjudicated as a mental defective or those committed to mental institutions.24

The Act also changes the standard for persons deemed to be “adjudicated as a mental defective” or “committed to a mental institution” by a federal agency or department. Such adjudications or commitments by federal agencies and departments are “deemed not to have occurred” for purposes of the federal prohibition against purchase or possession of firearms if:

  • The adjudication or commitment has been “set aside or expunged;”
  • The person has been “fully released or discharged from all mandatory treatment, supervision, or monitoring;”
  • A court, board, commission, or other lawful authority has found the person no longer suffers from the mental health condition that was the basis of the adjudication or commitment;
  • The person has been found to be rehabilitated “through any procedure available under law;”
  • The adjudication or commitment was based solely on a medical finding of disability without a hearing before a court, board, commission, or other lawful authority, and the person has not otherwise been adjudicated a mental defective; or
  • The person has been granted “relief” under a “relief from disabilities” program established by the federal agency or department in accordance with the Act’s requirements.25

Under prior law the prohibition on persons “adjudicated as a mental defective” or “committed to a mental institution” was permanent.

Under the Act, states are eligible to receive a waiver of the 10% matching requirement for National Criminal History Improvement Grants if they certify to the Attorney General at least once every two-year period that they have provided at least 90% of relevant records concerning persons who are prohibited from purchasing or possessing a firearm.26 National Criminal History Improvement Grants are grants made by the federal government to states for programs to upgrade their criminal history record information systems.27 These grants may not exceed 90% of the costs of the program incurred by a state.28 The Act also authorizes the Attorney General to withhold a certain percentage of the funding the state would receive under the Omnibus Crime Control and Safe Streets Act of 1968 for states that fail to submit a certain percentage of their relevant records.29

The Act also authorizes the Attorney General to make grants to the states for use in establishing and upgrading the states’ ability to report information, including mental health information, to NICS and to perform background checks pursuant to the Brady Act.30 In order to be eligible for the grants authorized by the Act, however, a state must implement a “relief from disabilities” program that meets the Act’s requirements.31 More specifically, the state program must:

  • Allow a person who has been adjudicated a mental defective or committed to a mental institution to apply to the state for “relief” from the federal prohibition on the purchase and possession of firearms and ammunition;32
  • Provide that a state court, board, commission, or other lawful authority shall grant a person this “relief” (thereby making the person once again eligible to purchase and possess firearms), “pursuant to State law” and in accordance with due process;33
  • Provide that a state court, board, commission, or other lawful authority will grant the relief if the circumstances regarding the adjudication or commitment, and the person’s record and reputation, are “such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest”;34 and
  • Permit a person whose application for relief is denied to file a petition with the appropriate state court for judicial review of the denial.35

The Act provides that when an application for relief is granted under a state program, the adjudication or commitment that formerly rendered the person prohibited from purchasing or possessing firearms is then “deemed not to have occurred” for purposes of federal law.36

In addition, the Act requires the Attorney General to establish regulations and protocols for protecting the privacy of mental health information provided by states to NICS.37 The Attorney General must work with states, local law enforcement, and the mental health community to establish these regulations and protocols, and must meet with any mental health group seeking to express its views concerning them.

The Law Center publicly has expressed concerns about the NICS Improvement Amendments Act of 2007, including: 1) the Act changes the standard by which mental health records are required to be submitted to NICS by federal agencies, which will result in far fewer records being submitted; and 2) the Act requires that federal agencies, and states that participate in the grant program, create relief from disability programs to restore the rights of some prohibited purchasers with mental health histories. Overall, the bill creates new loopholes that may allow dangerous individuals to gain access to firearms.38

Click here to view additional information about mental health reporting, including background information and state and local laws on the topic.

  1. 18 U.S.C. § 922(d)(4). []
  2. 18 U.S.C. § 922(g)(4). []
  3. 27 C.F.R. § 478.11. []
  4. Id. []
  5. Id. []
  6. Id. []
  7. Id. []
  8. 18 U.S.C. § 922(t). []
  9. Id. []
  10. Bureau of Justice Statistics, U.S. Department of Justice, Survey of State Procedures Related to Firearm Sales, 2005 3-4 (Nov. 2006). []
  11. Id. []
  12. Rachel L. Brand, Assistant Attorney General for Legal Policy, U.S. Department of Justice, Lethal Loopholes: Deficiencies in State and Federal Gun Purchase Laws, Statement before the House Committee on Oversight and Government Reform, Subcommittee on Domestic Policy, U.S. House of Representatives 10 (May 10, 2007). []
  13. Id. []
  14. Id. []
  15. See 28 C.F.R. § 25.4.; Brand, supra, at 5. []
  16. 521 U.S. 898 (1997). []
  17. See also Law Center to Prevent Gun Violence, Lessons From Virginia Tech: Recommendations for State Law Changes to Close Loopholes in Background Check Systems 4 n.16 (May 2007). []
  18. 27 C.F.R. § 478.11. []
  19. Bureau of Justice Statistics, U.S. Department of Justice, Survey of State Records Included in Presale Background Checks: Mental Health Records, Domestic Violence Misdemeanor Records, and Restraining Orders, 2003 (Aug. 2004); Bureau of Justice Statistics, U.S. Department of Justice, Survey of State Procedures Related to Firearm Sales, 2005 8 (Nov. 2006). []
  20. 45 C.F.R. § 164.104. []
  21. 45 C.F.R. §§ 164.508, 164.512(a), (f), (j). []
  22. See Mass Shootings at Virginia Tech, April 16, 2007, Report of the Review Panel Presented to Governor Timothy M. Kaine 65 (Aug. 2007). []
  23. 28 C.F.R. § 25.1, et seq. []
  24. Pub. L. No. 110-180, §§ 102, 104, 121 Stat. 2559 (2008). []
  25. Id., § 101(c)(1)(A), (1)(B), (1)(C), (2)(B). []
  26. Id., § 102. []
  27. See generally 42 U.S.C. § 14601. []
  28. 42 U.S.C. § 14601(d). []
  29. Pub. L. No. 110-180, § 104, 121 Stat. 2559 (2008). []
  30. Id., § 103(a), (b). []
  31. Id., § 103(c). []
  32. Id., § 105(a)(1). []
  33. Id., § 105(a)(2). []
  34. Id. []
  35. Id., § 105(a)(3). []
  36. Id., § 105(b). []
  37. Id., § 102(d). []
  38. See Law Center to Prevent Gun Violence, House of Representative Passes “NICS Improvement Act of 2007” with Troubling Amendments (June 15, 2007). []