Mental Health Reporting Policy Summary

Posted on September 16, 2013

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Mental Health and GunsFederal law prohibits the sale of firearms to certain individuals with a history of mental illness, and requires licensed dealers (but not unlicensed sellers) to request a background check prior to the transfer of a firearm to screen out these and other prohibited purchasers.1 However, federal law cannot require states to make information identifying these people available to the federal or state agencies that perform background checks,2 and many states fail to voluntarily report the necessary records to the FBI’s National Instant Criminal Background Check System (NICS), especially with respect to people prohibited from possessing guns for mental health reasons. As a result, some individuals known to be dangerous can pass background checks and obtain firearms.

The most tragic incident involving a state’s failure to report mental health records occurred in April 2007, when Virginia Tech student Seung-Hui Cho shot and killed 32 people and injured 17 others before committing suicide on the college campus in Blacksburg, Virginia.3  Cho was, in fact, prohibited from purchasing a firearm under federal law because of a history of mental illness.4  However, Cho was able to purchase firearms through two licensed dealers after two background checks. While Virginia law at that time required that some mental health records be submitted to the databases used for background checks, it did not require reporting of all people prohibited from possessing firearms for mental health reasons.5

Other mass shootings, including those in Tucson, Arizona on January 8, 2011, in Aurora, Colorado on July 20, 2012, and in Newtown, Connecticut on December 14, 2012, have also resulted in renewed calls for better laws addressing guns and mental illness. Our nation’s leaders, including President Obama, have joined these calls,6 and states have begun to respond.

  • Between November 1999 and November 2007, the number of disqualifying mental health records in NICS increased from less than 90,000 to about 400,000.7
  • The number of mental health records in NICS increased over 700% between the Virginia Tech shooting and January 31, 2014.8
  • As of January 31, 2014, there were over 3 million mental health records in NICS,9 with over one million records added in 2013 alone.10

Since the Virginia Tech shooting, about half of the states have enacted laws authorizing and requiring the submission of mental health records to NICS, as described below.  States that have enacted such laws have, in fact, subsequently submitted greater numbers of records. Of the states that had submitted the top 15 highest numbers of records as of May 2013, 14 (93%) had  enacted such laws, while only two of the 15 poorest performing states (13%) had enacted such laws.11

Despite the huge increase in the number of individuals identified in NICS, records of many individuals prohibited from possessing firearms because of their mental health histories are still missing from the database. The greatest gains in the numbers of state records submitted to NICS largely reflect the efforts of a small minority of states,12 and as of November 2013, 12 states had still submitted less than 100 records each.13

When mental health information is submitted to NICS, it can be effective at preventing firearm transfers by licensed dealers to dangerous people. In 2005, of the total number of prospective purchasers who were denied following an FBI background check, only 0.5% were denied for mental health reasons.14 By 2010, this number had risen to 1.8%.15  During the first three years after Virginia began submitting certain mental health information to NICS, Virginia’s disqualifying mental health records resulted in 438 denials of firearm purchases.16

Although some states have cited a concern for privacy as a reason that records have not been submitted to NICS, the mental health records submitted to NICS only identify the individuals through names, birth dates and similar data, and include no clinical information.17 In addition, as described below, access to information in NICS is tightly controlled.

States that do not submit records identifying people prohibited because of their mental health histories to NICS may nevertheless require a check of their own mental health records prior to a firearm transfer. See our summary on Background Checks Procedure for information about state law requirements regarding background checks. However, a person attempting to purchase a firearm in one state may have a disqualifying mental health history in another state. For example, of the 438 denials of firearm purchases by persons with mental health histories in Virginia in the three years after Virginia began submitting its mental health records to NICS, 378 were attempts to purchase firearms in states other than Virginia.18 Thus, a search of in-state mental health records ensures that a person disqualified on mental health grounds will not be allowed to purchase a firearm from a licensed firearms dealer in the state where the mental health record exists, but does not prevent such a person from purchasing a firearm in another state.

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Federal Law Regarding Mental Illness and Guns

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.”19 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.20

The term “adjudicated as a mental defective” is defined to explicitly include a finding of not guilty by reason of insanity or incompetence to stand trial.21

Federal regulations define a person as “committed to a mental institution” if a court, board, commission, or other lawful authority has formally committed him or her to a mental institution. The term is defined to include involuntary commitments, but does not include persons who are admitted to a mental institution voluntarily or for observation.22 In January 2014, the Obama administration began the process to update these regulations to explicitly include, among other individuals, people who have been ordered to receive outpatient treatment.23

States may prohibit additional categories of people from purchasing or possessing firearms on the basis of mental illness. Detailed information on these laws is contained in our summary on Categories of Prohibited People.

The Federal Background Check System

The Brady Handgun Violence Prevention Act (the “Brady Act”) requires licensed dealers to request a background check prior to transfer of a firearm.24 Background checks are performed through a search of the NICS system.25 For more general information about background check requirements, see our summary on Background Checks Procedure.

The NICS system includes four federal databases. Two of these – the Interstate Identification Index and the “NICS Index” – contain records that may identify a person as disqualified from possessing firearms on the basis of mental health or developmental disability.

The Interstate Identification Index (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. However, most state records that are in the NICS system and disqualify a person because of a mental health history or developmental disability exist in the “NICS Index,” not the III.

Federal law does not require states to submit information to NICS; participation is strictly voluntary.26 However, effective background checks on prospective firearm purchasers depend on the existence of 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 or developmental disability, state law should require that states report 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 developmental disability, 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 illness, developmental disability, or other reasons, such as drug use, including people committed for inpatient or outpatient treatment.27

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:

  • Provided financial rewards and penalties to encourage states to provide to NICS information relevant to whether a person is prohibited from possessing firearms, including identifying information regarding people adjudicated as a mental defective or committed to mental institutions;28 and
  • Authorized grants to assist states in establishing and upgrading their reporting and background check systems.29 In order to be eligible for the grants authorized by the Act, a state had to implement a “relief from disabilities” program that met the Act’s requirements.30

According to the Government Accountability Office, 15 states received NICS Act grants during at least one fiscal year from 2009-2011.31

Privacy and Access to Records

Federal and state privacy laws are frequently cited as reasons why states do not provide complete mental health records to the FBI.32  However, 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 limited to use in firearm purchaser background checks and other closely related law enforcement activities (such as the issuance of firearms-related permits, and enforcement activities by ATF), and safeguards protect against unauthorized disclosures.33

Furthermore, the federal Health Insurance and Portability and Accountability Act of 1996 (HIPAA) and implementing regulations restrict disclosure of protected health information only by health care plans, providers, and clearinghouses.34 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.35

In response to calls from President Obama, in 2013 the Department of Health and Human Services began the rulemaking process to amend the regulations that implement HIPAA to directly address mental health reporting to NICS.36

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Forty-three states have laws that require or authorize the reporting of some mentally ill people to the federal NICS database or a state database for use in firearm purchaser background checks.  As described below, the categories of individuals who are reported vary, as do the specific procedures and requirements involved. 

States that Authorize or Require Reporting of Mental Health Records to NICS

Alabama37
Alaska38
Arizona39
Colorado40
Connecticut41
Delaware42
Florida43
Georgia44
Hawaii45
Idaho46
Illinois47
Indiana48
Iowa49
Kansas50
Kentucky51
Louisiana52
Maine53
Maryland54
Massachusetts55
Minnesota56

Mississippi57
Missouri58
Nebraska59
Nevada60
New Jersey61
New York62
North Carolina63
North Dakota64
Oklahoma65
Oregon66
Pennsylvania67
Rhode Island68
South Carolina69
South Dakota70
Tennessee71
Texas72
Virginia73
Washington74
West Virginia75
Wisconsin76

States that Authorize or Require the Collection of Mental Health Records in an In-State Database Only

Arkansas77
California78
Michigan79
Ohio80
Utah81

Description of State Laws Regarding Mental Health Reporting
For citations to these laws, please see the lists above.

A.        The Categories of Mentally Ill Individuals to be Reported:  Most state mental health reporting laws are limited to individuals who have been subject to specified state mental health inpatient commitment procedures.  However, as described below, a number of states have broader reporting requirements.

1.         States identifying individuals to be reported by reference to federal and/or state prohibited categories:  About one-third of the states identify at least some of the individuals to be reported by reference to the federal and/or state prohibited categories or through incorporating language from the federal law.  Four states (Illinois, Nebraska, New Jersey and Pennsylvania) explicitly include in their reporting laws all mentally ill individuals prohibited from firearm possession under federal or state law.   Other states explicitly reference only the federal mental health prohibited categories and require the reporting of all individuals who fall within those categories. 

2.         States reporting individuals confined as inpatients:  All the states mentioned in this Summary include within the groups of people to be reported at least some people confined to mental institutions as inpatients, although the length of the required confinement varies.  For example, California requires the reporting of individuals held in a county mental health facility for 72 hours, pursuant to a state law prohibiting firearm possession by such individuals.82  In Kansas, on the other hand, individuals who are committed are only reported in situations where the court can order a commitment that lasts three months.83 Most of these laws only involve people who have been subject to formal involuntary commitment processes, although Florida enacted a law in 2013 that requires reporting of a voluntarily committed person if a judge or magistrate has classified the person as a danger because the examining physician certified that a petition for involuntary commitment would have been filed if the person had not consented to treatment.84

3.         Involuntary outpatient mental health treatment:  The following states specifically mandate the reporting of certain individuals ordered to receive outpatient mental health treatment.

Arizona
California
Florida
Idaho
Hawaii
Illinois
Indiana
Michigan
Mississippi
Nebraska
Nevada
North Carolina
North Dakota
Oregon
Pennsylvania
South Dakota
Tennessee
Virginia
Washington
West Virginia85
Wisconsin

4.         Guardianships for the mentally ill or developmentally disabled:  The following states specifically mandate the reporting of individuals appointed a guardian because they lack the capacity to manage their own affairs.86

Arizona
California
Colorado
Florida
Idaho
Illinois
Maryland
Massachusetts
Michigan
Mississippi
Nevada
New York
North Dakota
Texas
Virginia
Wisconsin

5.         Persons found insane in a criminal case:  About half of the states specifically authorize or require the reporting of all individuals found not guilty by reason of insanity in a criminal case or identify any person found guilty but insane in a criminal case as an individual to be reported. Additional states may report these individuals through their criminal history reporting laws.

6.         Persons found incompetent to stand trial:  About half the states specifically authorize or require the reporting of any person found incompetent to stand trial.  Again, additional states may report these individuals through their criminal history reporting laws.

B.        Process for Reporting:  The reporting of people with relevant mental health histories for the purposes of firearm background checks is usually a two-step process, with certain exceptions as described below.  Courts or mental health institutions usually report information to a centralized state agency, and the state agency may then forward the information to NICS and/or other law enforcement agencies that conduct background checks. 

1.         States that require reporting to NICS either directly or through a state agency:  The following states have laws that make it mandatory for courts to provide mental health information to NICS directly or through a centralized state agency for the purpose of transmitting this information to NICS. 

Alabama
Alaska
Arizona
Connecticut
Georgia
Hawaii
Idaho
Illinois
Indiana87
Iowa
Kansas
Kentucky
Maine
Maryland
Massachusetts
Minnesota
Mississippi
Nevada
New Jersey
New York
North Carolina
North Dakota
Oklahoma
Oregon
Rhode Island
South Carolina
South Dakota88
Tennessee
Texas
Virginia
Washington
Wisconsin

Similarly, Delaware requires hospitals housing the mentally ill to report certain records to the State Bureau of Identification and to NICS.

2.         States where disclosure to NICS is authorized, but not required:  The following states’ laws explicitly authorize, but do not require, reporting to NICS:  Colorado, Florida, Nebraska, Missouri, Pennsylvania, and West Virginia.89

3.         States that collect mental health records but do not address disclosure to NICS:  The following states’ laws acknowledge that they collect mental health records for use in firearm purchaser background checks, although these laws do not address disclosure to NICS:  Arkansas, California, Michigan, Ohio and Utah.  Most of these states require courts to report mental health information to a centralized state agency in connection with firearm purchaser background checks.90 

4.         States that utilize reports from mental health facilities, psychotherapists, law enforcement or schools:  The following states utilize reports from mental health facilities about individuals who have fallen into federal or state categories of prohibited firearm purchasers for firearm purchaser background checks:  California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New York, Ohio, Oregon, Washington and West Virginia.  In some of these states, this reporting takes the place of reporting by courts; in other states this reporting is in addition to reporting by courts. 

In California, in addition to reporting by mental health facilities, if a person communicates to a licensed psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims, the psychotherapist must report the person to local law enforcement, which must in turn report the person to the California Department of Justice for the purposes of firearm purchaser background checks.91 Similarly, New York adopted a law in 2013 that requires a mental health professional to report any person receiving treatment who is likely to engage in conduct that would result in serious harm to self or others; this information may be used to determine firearms eligibility and must be destroyed after five years.92  Illinois enacted a law in 2013 requiring reporting by any physician, clinical psychologist, qualified examiner, law enforcement official or the primary administrator for any school who determines that a person presents a “clear and present danger” to self or others, including any person determined to demonstrate threatening physical or verbal behavior.93

5.         State agencies required to enter into an MOU with the FBI:  Two states, Illinois and Connecticut, have enacted laws requiring certain state agencies to enter into a Memorandum of Understanding (“MOU”) with the FBI regarding submittal of information to NICS.  In this context, MOUs are written agreements that set forth the responsibilities of the various agencies and ensure that the mental health information submitted to NICS will only be utilized for firearm-related background checks.  In Connecticut, the State’s Department of Emergency Services and Public Protection, Department of Mental Health and Addiction Services, and Judicial Department were required to enter into an MOU with the FBI for the purpose of implementing NICS.  Similarly, both the Illinois Department of State Police and the Department of Human Services were required to enter into an MOU with the FBI for this purpose.

C.        Time Period for Reporting:  The following states’ laws require courts, agencies, or mental health officials to report mental health information within a specified time frame.

Arkansas (immediately)
California (immediately)
Colorado (within 48 hours)
Florida (one month)
Kansas (five days)
Illinois (seven days)
Louisiana (25 days)
Maryland (promptly)
Michigan (immediately)
Minnesota (within three business days)
Mississippi (30 days)
Nebraska (as soon as practicable but within 30 days)
North Carolina (no later than 48 hours, excluding weekends and holidays)
Ohio (seven days)
Pennsylvania (seven days)
Rhode Island (48 hours)
South Carolina (five days)
South Dakota (seven days)
Tennessee (as soon as practicable but no later than the third business day)
Texas (30 days)
Utah (30 days)
Virginia (“as soon as practicable, but no later than the close of business on the following business day”)
Washington (three judicial days)
Wisconsin (“in a timely manner”)

D.        The Reporting of Individuals Who Previously Became Prohibited:  As noted above, some states have only recently begun reporting people who are prohibited from possessing firearms because of mental illness.  As a result, a large number of people are prohibited from possessing firearms because of a prior adjudication or commitment but have not been reported.  A small number of states have undertaken the task of identifying these people from old court records in order to report them to NICS or other databases.  For example, in 2009, Texas enacted a law requiring courts to search through and submit 20 years’ worth of records by September 1, 2010,94 making Texas a leader in the number of records submitted to NICS.95  Similarly, Minnesota enacted a law in 2013 that requires courts to enter all persons civilly committed during the period from January 1, 1994, to September 28, 2010, into NICS by July 1, 2014.96  South Carolina also enacted a law in 2013 that requires courts to search back through a minimum of ten years’ worth of records to identify individuals to be reported.97

E.         States that Require Firearm Transferees to Authorize Disclosure of Mental Health Records:  A number of states require applicants for firearm licenses or persons seeking to purchase firearms to authorize disclosure of mental health information.  For more information about these laws, see our summary on Background Check Procedures.

50 State Summary

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The features listed below are intended to provide a framework from which policy options may be considered.  A jurisdiction considering new legislation should consult with counsel.

  • State law requires reporting anyone prohibited by federal or state law from purchasing or possessing a firearm due to mental illness (Illinois, Nebraska, New Jersey, and Pennsylvania)
  • Complete reporting by states of anyone prohibited by federal law from purchasing or possessing a firearm due to mental illness includes any person:
    • Determined by a court or other lawful authority to be a danger to self or others because of a mental disorder or defect;
    • Determined by a court or other lawful authority to lack the mental capacity to contract or manage his or her own affairs because of a mental disorder or defect, including any person appointed a guardian on this basis (15 states);
    • Formally committed involuntarily to a mental institution or asylum as an inpatient (Most states report at least some individuals) or outpatient (21 states);
    • Found not guilty by reason of insanity, mental disease or defect, or lack of mental responsibility in a criminal case; 
    • Found guilty but insane in a criminal case;
    • Found incompetent to stand trial;
    • Who falls within the categories of individuals prohibited under state law from possessing firearms (California, Illinois, Nebraska, New Jersey, Pennsylvania, Texas); or
    • Who has previously fallen into one of these categories (Texas has reported individuals who became prohibited as far back as September 1, 1989.)
  • Licensed psychotherapists (California, Illinois, New York), law enforcement officials and school administrators (Illinois) must report mentally ill individuals who demonstrate violent behavior; these people become prohibited from possessing firearms
  • Courts must ensure that information is reported to NICS and to an in-state agency (Tennessee and Washington), which is also charged with ensuring reporting to NICS (Connecticut, Illinois)
  • Law enforcement agencies other than NICS that conduct firearm purchaser background checks or issue firearm purchaser licenses have access to any databases containing relevant mental health records (California, Colorado, Illinois)
  • Mental health facilities must report individuals who are prohibited from possessing firearms for mental health reasons, if such individuals are not reported by courts (California, Delaware, Illinois)
  • Mental health records are reported immediately upon an adjudication or commitment that renders a person prohibited from purchasing or possessing a firearm (Arkansas, California, Michigan)
  1. 18 U.S.C. § 922(d)(4), (t). Sales by unlicensed sellers are not subject to background checks under federal law. For additional information on sales by unlicensed sellers, see our summary on Universal Background Checks & the Private Sale Loophole. []
  2. See 28 C.F.R. § 25.4. Case law suggests that a federal statute requiring states to disclose records to the FBI would violate the Tenth Amendment. In Printz v. U.S., 521 U.S. 898 (1997), 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. The Court held that Congress cannot compel state officials to enact or enforce a federal regulatory program. []
  3. Mass Shootings at Virginia Tech, April 16, 2007, Report of the Review Panel Presented to Governor Timothy M. Kaine 5 (Aug. 2007), at http://www.governor.virginia.gov/TempContent/techPanelReport.cfm. []
  4. A Virginia special justice declared Mr. Cho to be “an imminent danger” to himself as a result of mental illness on December 14, 2005, and directed Mr. Cho to seek outpatient treatment. Id. at 48, 71. []
  5. Id. at 71-73. []
  6. See Office of the President, Now is the Time:  Gun Violence Reduction Executive Action, at http://www.whitehouse.gov/sites/default/files/docs/wh_now_is_the_time_actions.pdf; Congressional Gun Violence Prevention Task Force, It’s Time to Act:  A Comprehensive Plan That Reduces Gun Violence and Respects the 2nd Amendment Rights of Law-Abiding Americans (Feb. 7, 2013), at http://www.scribd.com/doc/124384563/Gun-Violence-Prevention-Task-Force-Recommendations. []
  7. U.S. General Accounting Office, Gun Control: Options for Improving the National Instant Criminal Background Check System 7-8 (Apr. 2000), at http://www.gao.gov/archive/2000/gg00056.pdf; Michael B. Mukasey, Prepared Remarks of Attorney General Michael B. Mukasey at the National Association of Attorneys General Winter Meeting, Park City, Utah (Nov. 29, 2007). []
  8. Id., Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Dep’t of Justice, Active Records in the NICS Index As of January 31, 2014, at http://www.fbi.gov/about-us/cjis/nics/reports/nics-index-013114.pdf. []
  9. Id. []
  10. Id., Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Dep’t of Justice, National Instant Criminal Background Check System (NICS) Operations 2012, at http://www.fbi.gov/about-us/cjis/nics/reports/2012-operations-report. []
  11. Everytown for Gun Safety, Closing the Gaps:  Strengthening the Background Check System to Keep Guns Away from the Dangerously Mentally Ill (May 2014), at http://everytown.org/article/closing-the-gaps/?source=fbno_closingthegaps&utm_source=fb_n_&utm_medium=_o&utm_campaign=closingthegaps. []
  12. U.S. General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks, at 9-10 (July 2012), available at http://www.gao.gov/products/GAO-12-684. []
  13. Mayors Against Illegal Guns, Twenty Years After US Requires Gun Background Checks, New FBI Data Shows Information Gaps Still Allow Criminals to Get Firearms (Nov. 21, 2013), at http://www.demandaction.org/detail/2013-11-twenty-years-after-us-requires-gun-background-checks. []
  14. U.S. Department of Justice, Background Checks for Firearm Transfers, 2005, Bureau of Justice Statistics Bulletin 5 (Nov. 2006), at http://www.bjs.gov/content/pub/pdf/bcft05.pdf. []
  15. Bureau of Justice Statistics, U.S. Dep’t of Justice, Background Checks for Firearm Transfers, 2010 – Statistical Tables (Feb. 2013), at http://www.bjs.gov/content/pub/pdf/bcft10st.pdf. []
  16. 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 12 (May 10, 2007), at http://www.usdoj.gov/olp/pdf/guns07a.pdf. []
  17. Congressional Research Service, Submission of Mental Health Records to NICS and the HIPAA Privacy Rule, CRS Report for Congress (April 15, 2013), at http://www.fas.org/sgp/crs/misc/R43040.pdf. []
  18. Brand, supra note 18, at 12. []
  19. 18 U.S.C. § 922(d)(4). Such persons are prohibited from possessing firearms. 18 U.S.C. § 922(g)(4). []
  20. 27 C.F.R. § 478.11. []
  21. Id. []
  22. Id. The term includes commitments for mental defectiveness, mental illness, and other reasons, such as drug use. []
  23. See Amended Definition of “Adjudicated as a Mental Defective” and “Committed to a Mental Institution”, 79 Fed. Reg. 774 (proposed January 7, 2014) (to be codified at 27 C.F.R. § 478.11). []
  24. 18 U.S.C. § 922(t). []
  25. Id. In most states, dealers request background checks by contacting the FBI, which performs these background checks by searching NICS. Only 13 states – called Point of Contact states – require dealers to contact a state agency, which searches NICS and other in-state databases for information regarding the prospective purchaser. Id. []
  26. See 28 C.F.R. § 25.4.; U.S. General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks 7  (July 2012), at http://www.gao.gov/products/GAO-12-684. []
  27. 27 C.F.R. § 478.11. []
  28. Pub. L. No. 110-180, §§ 102, 104, 121 Stat. 2559 (2008). []
  29. Id., § 103. []
  30. Id., § 103(c). In order to be eligible for the grants authorized by the Act, a state had to implement a program that allows a person who falls within the mental prohibited categories described above to petition for restoration of his or her firearms eligibility and requires that such petitions be granted “pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the disabilities … 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.” Id., § 105. []
  31. U.S. General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks (July 2012), at  http://www.gao.gov/products/GAO-12-684. []
  32. U.S. General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks (July 2012), at  http://www.gao.gov/products/GAO-12-684. []
  33. 28 C.F.R. § 25.1, et seq. []
  34. 45 C.F.R. § 164.104. []
  35. 45 C.F.R. §§ 164.508, 164.512(a), (f), (j). State privacy laws are similar. See Mass Shootings at Virginia Tech, supra note 3, at 65. []
  36. Office of the Secretary, Dep’t of Health and Human Services, Advanced Notice of Proposed Rulemaking, HIPAA Privacy Rule and the National Instant Criminal Background Check System (NICS), 78 Fed. Reg. 23872 (April 23, 2013), at https://www.federalregister.gov/articles/2013/04/23/2013-09602/hipaa-privacy-rule-and-the-national-instant-criminal-background-check-system-nics. []
  37. Ala. Code § 22-52-10.8. []
  38. 2013 AK H.B. 366. []
  39. Ariz. Rev. Stat. §§ 13-609, 13-925, 36-540, 14-5304. []
  40. Colo. Rev. Stat. §§ 13-5-142, 13-9-123, 15-14-102, 18-4-412(4), 19-1-304. []
  41. Conn. Gen. Stat. §§ 17a-500(b), (c)(2), 29-36f(b)(8), 29-36l, 29-38b. []
  42. Del. Code Ann. tit. 11, §§ 1448A, 8509; tit. 16, §§ 5001, 5161(b)(13)g, (14); tit. 29, § 9017(c). []
  43. Fla. Stat. Ann. § 790.065(2)(a)(4). []
  44. Ga. Code Ann. §§ 16-11-172(b), 35-3-34(e); Ga. Comp. R & Regs. 140-2-.17. []
  45. 2014 HI. H.B. 2246, Haw. Rev. Stat. Ann. §§ 134-3.5, 334-2.5(c)(4); 334-60.2, 704-406, 704-411. []
  46. Idaho Code Ann. §§ 67-3003(1)(i), 66-356, 9-340A(2), 9-340C(6), (13). []
  47. 405 Ill. Comp. Stat. 5/6-103.1, 5/6-103.2, 5/6-103.3; 430 Ill. Comp. Stat. 65/3.1, 65/4(a)(3), 65/8.1; 740 Ill. Comp. Stat. 110/12(b). []
  48. Ind. Code Ann. §§ 11-10-4-3(e), 12-26-6-8(g), 12-26-7-5(c), 33-24-6-3(a)(8), 35-36-2-4(e), 35-36-2-5(f), 35-36-3-1(c). []
  49. Iowa Code §§ 690.4, 692.17, 724.17, 724.31. []
  50. Kan. Stat. Ann. §§ 59-2946, 59-2966, 75-7c25. []
  51. Ky. Rev. Stat. § 237.108. []
  52. La. Rev. Stat. § 13:753. []
  53. Me. Rev. Stat. tit. 25, § 1541(3)(c), tit. 34-B, § 3864(12). []
  54. Md. Code, Pub. Safety § 5-133.2; Md. Code, Health-Gen. § 10-605; Md. Code, Crim. Proc. §§ 3-106(h), 3-112(d). []
  55. 2013 MA H.B. 4376; Mass. Gen. Laws ch. 123, § 36; ch. 140, §§ 129B(2), 131(e). []
  56. Minn. Stat. §§ 245.041, 253B.09, 253B.24, 624.713. []
  57. Miss. Code Ann. §§ 9-1-49, 45-9-103. []
  58. Mo. Rev. Stat. §§ 43.503(6), 552.030(7), 610.120(1), 630.140(5). []
  59. Neb. Rev. Stat. Ann. § 69-2409.01. []
  60. Nev. Rev. Stat. Ann. §§ 159.0593(1), 174.035(8), 175.533(3), 175.539(4), 178.425(6), 179A.163(1), 179A.165(1), 433A.310(4), (5). []
  61. N.J. Stat. Ann. §§ 2C:58-3, 30:4-24.3, 30:4-24.3a; N.J. Admin. Code §§ 10:7-7.1, 13:54-1.4 – 13:54-1.6. []
  62. N.Y. Penal Law §§ 400.00(4), 400.03(5)-(6); N.Y. Crim. Proc. Law §§ 330.20, 730.60; N.Y. Mental Hyg. Law §§ 7.09(j), 9.11, 9.46, 13.09(g), 31.11(5), 33.13(b), (c); N.Y. Exec. Law § 837(19); N.Y. Jud. Law § 212(2)(q). []
  63. N.C. Gen. Stat. §§ 122C-54(d1), (d2), 122C-54.1, 14-404(c1). []
  64. N.D. Cent. Code § 62.1-02-01.2. []
  65. 2013 OK S.B. 1845 (to be codified as Okla. Stat. tit. 21 § 1290.27). []
  66. Or. Rev. Stat. §§ 166.412, 166.432, 181.740, 426.130, 426.160, 427.293; Or. Admin. R. 257-010-0060. []
  67. 18 Pa. Cons. Stat. §§ 6109(i.1), 6111.1; 50 Pa. Stat. Ann. §§ 7109, 7111; 37 Pa. Code §§ 33.103(e), 33.120. []
  68. 2013 RI H.B. 7939. []
  69. S.C. Code Ann. §§ 23-31-1010, 23-31-1020. See 2013 S.C. Acts 22  (Signed May 3, 2013). []
  70. 2014 S.D. H.B. 1229 (signed by the Governor March 14, 2014). []
  71. Tenn. Code Ann. §§ 16-1-117(a), 16-3-812, 16-10-213(b), (c), 16-11-206(b), (c), 16-15-303(g), 16-16-120(b), 33-3-115, 33-3-117. []
  72. Tex. Gov’t Code §§ 411.052, 411.0521. []
  73. Va. Code Ann. §§ 19.2-169.2, 19.2-389, 19.2-390, 37.2-819, 64.2-2014. []
  74. Wash. Rev. Code Ann. §§ 9.41.047, 9.41.090, 9.41.094, 9.41.097, 10.97.030(4), 10.97.045, 71.05.390(17), 71.34.340(16). []
  75. W. Va. Code §§ 27-5-4(c)(3), 61-7A-2, 61-7A-3. []
  76. Wis. Stat. §§ 51.20(13)(cv)(4), 175.35(2g)(d)(1). []
  77. Ark. Code Ann. §§ 5-2-302, 5-2-310(b), 5-2-314, 12-12-209, 20-47-214, 20-47-215. []
  78. Cal. Welf. & Inst. Code §§ 8100, 8103 – 8105; Cal. Penal Code § 28220. []
  79. Mich. Comp. Laws §§ 28.243(9), (10), 330.1464a, 700.5107, 769.16a – 769.16b. []
  80. Ohio Rev. Code § 5122.311. []
  81. Utah Code Ann. § 53-10-208.1. []
  82. Cal. Welf. & Inst. Code § 8103(f)(2). []
  83. Kan. Stat. § 59-2966. The Law Center has not conducted an analysis of the duration of the required confinement in all 50 states. []
  84. 2013 Fla. HB 1355 (Approved by the Governor June 28, 2013). []
  85. West Virginia requires the reporting of individuals who are committed to outpatient treatment to the state’s central mental health registry.  However, these individuals are not explicitly mentioned in the provision authorizing disclosure to NICS. W. Va. Code §§ 61-7A-3, 61-7A-4. []
  86. Although Missouri does not mandate the reporting of incapacitated individuals who have been appointed a guardian, it requires the Missouri State Patrol to report to NICS if such an individual successfully petitions for the removal of the firearm disqualification.  In this way, Missouri recognizes that such individuals may have been reported to NICS.  Mo. Rev. Stat. § 571.092. []
  87. In addition to reporting by courts, the Indiana Department of Corrections must transmit information to the Division for transmission to NICS whenever it “involuntarily transfers” a criminal to the Division of Mental Health and Addiction.  See Ind. Code Ann. § 11-10-4-3. []
  88. In South Dakota, the prosecuting attorney must report people found not guilty by reason of insanity and people found incompetent to stand trial, and a county board of mental health must report involuntary commitments. 2014 S.D. H.B. 1229. A county board of mental health consists of a lawyer or magistrate appointed by the presiding circuit judge of the county court and two other people appointed by the board of county commissioners; this board is responsible for determining whether people within the county must be involuntarily committed. S.D. Codified Laws §§ 27A-7-1, 27A-10-9.1. []
  89. Colorado and Nebraska’s laws require reporting to NICS when a formerly mentally ill person’s eligibility to possess firearms is restored. Colo. Rev. Stat. § 13-5-142; Neb. Rev. Stat. § 69-2409.01. These provisions indicate that at least some reporting of mental health records to NICS is authorized. []
  90. In these states, there may be no legal impediment to release of this information to NICS. This list does not include states whose reporting requirements only apply to criminal verdicts.  For example, Missouri requires courts to report verdicts of not guilty by reason of mental disease or defect to its criminal records central repository. States may utilize in-state mental health databases when conducting firearm purchaser background checks in addition, or as an alternative, to utilizing NICS.  For more information about state laws requiring a search of in-state mental health records during the background check process, see the Background Checks Policy Summary. []
  91. The person is prohibited from possessing firearms for five years, unless he or she petitions for restoration of firearms eligibility sooner.  Cal. Welf. & Inst. Code §§ 8100, 8105. In 2013, Tennessee enacted a similar law requiring reporting by mental health professionals to law enforcement.  See 2013 TN SB 789 § 9. []
  92. N.Y. Mental Hyg. Law § 9.46; N.Y. Exec. Law § 837(19). []
  93. 2013 Ill. ALS 63 §§ 105, 145, 150. These people are prohibited from possessing firearms under Illinois law until they have their firearms eligibility restored. []
  94. 2009 Tex. ALS 950 § 3. []
  95. Stewart M. Powell, “Texas among leaders in filing gun reports,” Houston Chronicle, June 22, 2011, at http://www.chron.com/news/houston-texas/article/Texas-among-leaders-in-filing-gun-reports-2079219.php; Texas Office of Court Administration, Texas NICS Mental Health Record Improvement Plan Progress, Challenges, and Recommendations (Oct. 2012), at http://www.txcourts.gov/oca/pdf/NICSRecordImprovementPlan.pdf. []
  96. 2013 Minn. ALS 86 § 10. []
  97. 2013 S.C. Acts 22, § 3. []