Posted on September 3, 2015
Federal law 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 No federal law requires states to report the identities of these individuals to the National Instant Criminal Background Check System (NICS) database, which the FBI uses to perform background checks prior to firearm transfers.
There is no law in Utah requiring the reporting of mental health information to NICS.
In Utah, every magistrate or court clerk responsible for court records must, within 30 days of a disposition, furnish the Criminal Investigations and Technical Services Division within the Department of Public Safety with certain records, including information pertaining to any:
- Judgment of not guilty by reason of insanity, or finding of mental incompetence to stand trial for a felony or a violation of Utah Code Ann. Title 76, Chapter 5 (Offenses Against the Person) or Chapter 10, Part 5 (Weapons);
- Judgment of guilty but mentally ill; and
- Order of civil commitment of the mentally ill.2
However, there is no law requiring the Department of Public Safety to then make these records available to NICS.
In 2013, Utah enacted procedures for a person who is subject to state or federal law firearm prohibitions based on a commitment, finding, or adjudication that occurred in Utah to petition the district court in the county in which the commitment, finding, or adjudication occurred to remove the firearm disability.3 The petition must include, among other things, a copy of the petitioner’s criminal history report and a verified report of a mental health evaluation conducted by a licensed psychiatrist occurring within 30 days prior to the filing of the petition.4 The report must include a statement regarding:
(i) the nature of the commitment, finding, or adjudication that resulted in the restriction on the petitioner’s ability to purchase or possess a dangerous weapon;
(ii) the petitioner’s previous and current mental health treatment;
(iii) the petitioner’s previous violent behavior, if any;
(iv) the petitioner’s current mental health medications and medication management;
(v) the length of time the petitioner has been stable;
(vi) external factors that may influence the petitioner’s stability;
(vii) the ability of the petitioner to maintain stability with or without medication; and
(viii) whether the petitioner is dangerous to public safety.5
The court must consider (a) the facts and circumstances that resulted in the commitment, finding, or adjudication and (b) the person’s mental health and criminal history records, and (c) the person’s reputation, including the testimony of character witnesses.6 The court must then grant the relief if it finds by clear and convincing evidence that:
(a) the person is not a danger to the person or to others;
(b) the person is not likely to act in a manner dangerous to public safety; and
(c) the requested relief would not be contrary to the public interest.7
The court shall issue an order with its findings and send a copy to the Bureau of Criminal Identification, which must, upon receiving a court order removing a person’s firearm disability, send a copy of the court order to NICS requesting removal of the person’s name from the database.8 Though the petitioner may appeal a denied petition, he or she may not petition again for relief until at least two years after the date of the court’s final order.9
See our Mental Health Reporting policy summary for a comprehensive discussion of this issue.
- 18 U.S.C. § 922(d)(4). [↩]
- Utah Code Ann. § 53-10-208.1; see also Utah Code Ann. § 62A-15-631 (regarding involuntary civil commitments). [↩]
- 2013 UT S.B. 80, enacting Utah Code Ann. § 76-10-532. [↩]
- Utah Code Ann. § 76-10-532(2). [↩]
- Utah Code Ann. § 76-10-532(2)(c). [↩]
- Utah Code Ann. § 76-10-532(5). [↩]
- Utah Code Ann. § 76-10-532(6). [↩]
- Utah Code Ann. § 76-10-532(7), (8). [↩]
- Utah Code Ann. § 76-10-532(9), (10). [↩]