Click here to see current summaries of all fifty states’ laws in this area.

The following material has been updated from the Law Center’s February 2008 edition of Regulating Guns in America – An Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws.

Background

Federal law prohibits the sale of firearms and ammunition to certain individuals with a history of mental illness, and requires licensed dealers (but not unlicensed sellers) to request a background check prior to transfer of a firearm to screen out prohibited purchasers.¹ However, federal law does not require states to make mental health information available to the federal or state agencies that perform background checks,² and many states fail to report to the FBI’s National Instant Criminal Background Check System (NICS) all relevant mental health information necessary for a background check to identify persons who are prohibited from purchasing firearms.

Between November 1999 and November 2007, the number of disqualifying mental health records in the NICS Mental Defective File increased from about 90,000 to about 400,000.³ However, the U.S. General Accounting Office has estimated that there should be at least 2.7 million such records in the database.⁴ Hence, the total number of records currently reported to NICS is still a small fraction of the number of persons prohibited from purchasing firearms due to a history of mental illness. 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.⁵

When mental health information is submitted to NICS, it can be effective at preventing firearm transfers by licensed dealers to the mentally ill. 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.⁶

However, even states that report mental health information to NICS may fail to report all disqualifying mental health records due to loopholes in state law. As a result of the underreporting of mental health information by some states, mentally ill individuals have been able to obtain firearms even though they are prohibited by law from doing so.

The most tragic incident involving such a loophole occurred in April 2007, when Virginia Polytechnic Institute and State University (Virginia Tech) student Seung-Hui Cho shot and killed 32 people and injured 17 others before committing suicide on the Virginia Tech campus in Blacksburg, Virginia.⁷ Cho was, in fact, prohibited from purchasing a firearm under federal law because of a history of mental illness.⁸ 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 information be submitted to NICS, it did not require reporting of orders adjudicating persons to be a danger to themselves or others if they were only directed to outpatient, as opposed to inpatient, mental health treatment.⁹ In response to the shooting, a panel convened by Virginia Governor Timothy Kaine issued a report recommending that all states report to NICS all information necessary to conduct federal background checks for firearm transfers.¹⁰

Similarly, soon after the shooting, Secretary of the Department of Health and Human Services Michael Leavitt, Secretary of the Department of Education Margaret Spellings, and then-Attorney General Alberto Gonzales issued a report finding that state laws and practices do not uniformly ensure that information regarding persons restricted from possessing firearms is appropriately captured and available to NICS, and recommending that states submit all relevant disqualifying information to NICS.¹¹ The National Association of Attorneys General also issued a report making the same recommendation.¹²

In an ABC News poll conducted after the Virginia Tech shooting, 83% of respondents answered that states should be required to report mentally ill people to a federal database, in order to prevent them from buying guns.¹³

The FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) also are encouraging states to provide more mental health records to NICS.¹⁴ Nevertheless, as of April 30, 2007, the FBI identified only 23 states as having submitted mental health records to the FBI for inclusion in NICS.¹⁵ Thirteen of the 23 had submitted less than 50 records.¹⁶ Some had submitted only one record.¹⁷ A few more states began reporting mental health records to NICS soon after the Virginia Tech shooting. Nevertheless, according to Attorney General Michael Mukasey, as of November 2007, only 32 states had submitted mental health records to the FBI for inclusion in NICS.¹⁸

States that do not submit mental health records to NICS may nevertheless require a check of their own mental health records prior to a firearm transfer. 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.¹⁹ 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 in the state where the mental health record exists, but does not prevent such a person from purchasing a firearm in another state.

Summary of Federal Law

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.”²⁰ 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.²¹ The term “adjudicated as a mental defective” explicitly includes a finding of not guilty by reason of insanity or incompetence to stand trial.²²

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.²³ The term is defined to include involuntary commitments, but does not include persons who are admitted to a mental institution voluntarily or for observation.²⁴

The Brady Handgun Violence Prevention Act (the “Brady Act”) requires licensed dealers to request a background check prior to transfer of a firearm.²⁵ Background checks are performed through a search of the NICS system.²⁶ The NICS system includes three federal databases; two of these – the Interstate Identification Index and the NICS Index – contain information used to determine whether a person is disqualified from possessing firearms on the basis of mental health.

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. 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.²⁷ 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.²⁸ 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.²⁹

Federal law does not require states to submit mental health information to NICS; participation is strictly voluntary.³⁰ However, 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 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 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.³¹

Federal and state privacy laws are frequently cited as reasons why states do not provide complete mental health records to the FBI.³² However, 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.³³ 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.³⁴

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.³⁵

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.³⁶

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.³⁷

Under the Act, states are eligible to receive a waiver of the 10% matching requirement for National Criminal History Improvement Grants³⁸ 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.³⁹ 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.⁴⁰

However, in order to be eligible for the grants authorized by the Act, a state must implement a “relief from disabilities” program that meets the Act’s requirements.⁴¹) 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 purchase and possession of firearms and ammunition;⁴²
• 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;⁴³
• 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”;⁴⁴ 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.⁴⁵

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.⁴⁶

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.⁴⁷ 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.⁴⁸

SUMMARY OF STATE LAWS GOVERNING THE REPORTING OF MENTAL HEALTH INFORMATION

(This summary was last updated October 16, 2012.)

Thirty-eight states require or authorize the reporting of some mental health information 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

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

Arkansas⁷⁹

California⁸⁰

Hawaii⁸¹

Maryland⁸²

Massachusetts⁸³

Michigan⁸⁴

Ohio⁸⁵

Utah⁸⁶

Description of State Laws Regarding Mental Health Reporting

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 identified additional individuals subject to federal and/or state prohibitions, and require or authorize the reporting of these individuals.  The broadest laws simply reference the federal and state prohibitions on firearm possession by the mentally ill and require the reporting of all such individuals.

1.             States identifying individuals to be reported by reference to federal and/or state prohibited categories:  Sixteen states identify the individuals to be reported by reference to the federal and/or state prohibited categories or through incorporating language from the federal law.  Three states (Illinois, Nebraska and Pennsylvania) explicitly include in their reporting laws all mentally ill individuals prohibited from firearm possession under federal or state law.  Three more states (Connecticut, Iowa and Kentucky) explicitly reference only the federal mental health prohibited categories, and require the reporting of all individuals who fall within those categories.  In three other states (Idaho, North Dakota and Wisconsin), courts in certain situations involving mental illness must make a finding whether the federal prohibition applies, and must report such individuals.  Florida and Tennessee incorporate the federal definition of “adjudicated a mental defective,” and require the reporting of all such individuals. Four more states (California, Indiana, Nebraska and Oregon) require or authorize the reporting of all individuals determined by a court or other lawful authority to be a danger to themselves or others because of a mental disorder or defect. West Virginia authorizes the reporting of all individuals determined by a court or other lawful authority to lack the capacity to contract or manage their own affairs because of a mental disorder or defect.

2.            States reporting individuals confined as inpatients:  All existing state mental health laws identify at least some individuals confined to a mental institution as an inpatient as individuals to be reported, 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.⁸⁷  In Kansas, on the other hand, individuals who are committed are only reported in situations where the court can order a commitment that lasts 3 months.⁸⁸

3.            Involuntary outpatient mental health treatment:  The following 15 states specifically mandate the reporting of certain individuals ordered to receive outpatient mental health treatment.

4.            Guardianships for the mentally ill or developmentally disabled:  The following eleven states specifically mandate the reporting of individuals appointed a guardian because they lack the capacity to manage their own affairs.⁹⁰

5.            Persons found insane in a criminal case:  The following 21 states specifically authorize or require the reporting of all individuals found not guilty by reason of insanity in a criminal case.

Five states (Indiana, Nevada, Oregon, Tennessee and Utah) 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.⁹¹

6.            Persons found incompetent to stand trial:  The following 20 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 mental health information 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 a state agency that must report to NICS:  The following 16 states have laws that require courts to provide mental health information to a centralized state agency for the purpose of transmitting this information to NICS.

2.            States requiring courts or mental health institutions to report directly to NICS:   Five states (Colorado, Minnesota, North Carolina, Tennessee and Washington) have laws that require courts to ensure that mental health information is transmitted directly to NICS, although in practice, the courts may utilize a state agency as an intermediary.  Four of these five states (all but North Carolina) require the courts to report this information to NICS and an in-state agency.  Similarly, Delaware requires hospitals housing the mentally ill to report certain records to the State Bureau of Identification and to NICS.

3.            States where disclosure to NICS is authorized, but not required:  Eight states’ laws explicitly authorize, but do not require, reporting to NICS.  Six of the eight states (Arizona, Florida, Nebraska, Pennsylvania, Virginia and West Virginia)⁹³ require courts to report mental health information to a centralized state agency, and authorize the agency to forward this information to NICS.⁹⁴  In addition, in Missouri, records and files concerning court proceedings for mental health and psychiatric issues are available to the Missouri State Highway Patrol for reporting to the FBI for inclusion in NICS.  New Jersey mental health institutions are authorized, but not required, to disclose information directly to NICS.

4.            States that collect mental health records but do not address disclosure to NICS:  Eight 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.  Six of the eight states (Arkansas, California, Maryland, Michigan, Ohio and Utah) require courts to report mental health information to a centralized state agency in connection with firearm purchaser background checks.⁹⁵   In addition, California, Maryland and Ohio require some reporting by mental health facilities.⁹⁶  In Hawaii and Massachusetts, a state agency is charged with collecting mental health records for use in firearm purchaser background checks, although there is no explicit reporting requirement.⁹⁷

5.            States that utilize reports from mental health facilities:  Eleven states rely to some extent on mental health facilities to report information about individuals who have fallen into federal or state categories of prohibited firearm purchasers because of mental illness.  In three of these states, this reporting takes the place of reporting by courts (Delaware, Hawaii and Massachusetts).  In eight other states, both mental health institutions and courts are required to report this information in varying situations (California, Illinois, Maryland, New York, Ohio, Oregon, Washington and West Virginia).  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 the California Department of Justice for the purposes of firearm purchaser background checks.⁹⁸

6:            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.

7.            States reporting to the Denied Persons File:  Four states (Alabama, Connecticut, Illinois and Washington) explicitly require or authorize submission of mental health information into the Denied Persons File (as opposed to the Mental Defective File) within NICS.  States that submit records to the Denied Persons File are not required to identify the reason why a person is prohibited from possessing firearms.  As a result, a state may choose to submit a mental health record to the Denied Persons File instead of the Mental Defective File if the state does not wish to disclose the fact that the person has a mental health history.⁹⁹

C.            Time period for reporting:  The following 19 states’ laws require courts, agencies, or mental health officials to report mental health information within a specified time frame.

Arkansas (immediately)

California (immediately)

Colorado (periodically)

Florida (one month)

Kansas (five days)

Illinois (seven days)

Maryland (ten days)

Michigan (immediately)

Minnesota (as soon as practicable)

Nebraska (as soon as practicable but within 30 days)

North Carolina (as soon as practicable)

Ohio (seven days)

Pennsylvania (seven days)

Tennessee (on January 1, April 1, July 1 and October 1 of each year)

Texas (30 days)

Utah (30 days)

Virginia (“forthwith” or no later than the close of business on the next business day)

Washington (three judicial days)

Wisconsin (“in a timely manner”)

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 the Background Checks policy summary.

FEATURES OF COMPREHENSIVE MENTAL HEALTH REPORTING LAW

The features listed below are intended to provide a framework from which policy options may be considered and debated.  The Law Center has not attempted to include every provision or every creative approach identified in the analysis above, nor have we addressed appropriate exceptions so that the regulation does not produce unintended consequences.  A jurisdiction considering modifying existing, or developing new legislation in this area should consult with counsel to ensure its legal sufficiency and compatibility with existing codes and statutes, as appropriate.

• State law requires reporting all persons prohibited by federal or state law from purchasing or possessing a firearm due to mental illness (Illinois, Nebraska, and Pennsylvania; Connecticut, Iowa, and Kentucky only refer to the federal prohibition)

• Complete reporting by states of all persons prohibited by federal law from purchasing or possessing a firearm due to mental illness includes the following:
  • 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 (California, Florida, Illinois, Indiana, Nebraska, Oregon, Tennessee), including any person ordered to undergo outpatient treatment on this basis (15 states);
  • Any person 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 (Florida, Illinois, Tennessee, West Virginia), including any person appointed a guardian on this basis (eleven states);
  • Any person formally committed involuntarily to a mental institution or asylum as an inpatient (38 states report at least some individuals¹⁰⁰ );
  • Any person found not guilty by reason of insanity, mental disease or defect, or lack of mental responsibility in a criminal case (21 states);
  • Any person found guilty but insane in a criminal case (Indiana, Nevada, Oregon, Tennessee, Utah);
  • Any person found incompetent to stand trial (20 states); and
  • Any person who falls within the categories of individuals prohibited under state law from possessing firearms (California, Illinois, Nebraska, Pennsylvania, Texas)
• Licensed psychotherapists must report particularly dangerous individuals, who become prohibited from possessing firearms (California)
• Courts must ensure that information is reported to NICS and to an in-state agency (Colorado, Minnesota, 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,  llinois)
• 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)
• 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 Private Sales policy summary. [↩]
2. See 28 C.F.R. § 25.4; Legal Community Against Violence, Lessons From Virginia Tech: Recommendations for State Law Changes to Close Loopholes in Background Check Systems 4 n.16 (May 2007). [↩]
3. U.S. General Accounting Office, Gun Control: Options for Improving the National Instant Criminal Background Check System 7-8 (Apr. 2000); 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), available at http://www.usdoj.gov/ag/speeches/2007/ag_speech_071129.html. 200,000 records were submitted by California in October 2007. Id. [↩]
4. Gun Control, supra note 3, at 59. [↩]
5. U.S. Department of Justice, Background Checks for Firearm Transfers, 2005, Bureau of Justice Statistics Bulletin 5 (Nov. 2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/bcft05.pdf. [↩]
6. 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), available at http://www.usdoj.gov/olp/pdf/guns07a.pdf. [↩]
7. Mass Shootings at Virginia Tech, April 16, 2007, Report of the Review Panel Presented to Governor Timothy M. Kaine 5 (Aug. 2007). [↩]
8. 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. [↩]
9. Id. at 71-73. [↩]
10. Id. at 76. [↩]
11. Report to the President on Issues Raised by the Virginia Tech Tragedy 10-11 (June 13, 2007). [↩]
12. National Association of Attorneys General Task Force on School and Campus Safety, Report and Recommendations (Sept. 2007). [↩]
13. ABC News Poll, VA Tech, Guns, and Mental Illness (Apr. 22, 2007). [↩]
14. Brand, supra note 6, at 10-11. [↩]
15. These states are: Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Iowa, Kansas, Kentucky, Maryland, Michigan, Missouri, New Hampshire, New York, North Carolina, Ohio, South Carolina, Tennessee, Utah, Virginia, Washington and Wyoming. Id. at 11-12. [↩]
16. Id. at 11. [↩]
17. Id. [↩]
18. Mukasey, supra note 3. [↩]
19. Brand, supra note 6, at 12. [↩]
20. 18 U.S.C. § 922(d)(4). Such persons are prohibited from possessing firearms. 18 U.S.C. § 922(g)(4). [↩]
21. 27 C.F.R. § 478.11. [↩]
22. Id. [↩]
23. Id. [↩]
24. Id. The term includes commitments for mental defectiveness, mental illness, and other reasons, such as drug use. [↩]
25. 18 U.S.C. § 922(t). [↩]
26. Id. In most states, dealers request background checks by contacting the FBI, which performs these background checks by searching NICS. Bureau of Justice Statistics, U.S. Department of Justice, Survey of State Procedures Related to Firearm Sales, 2005 3-4 (Nov. 2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ssprfs05.pdf. 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. For more information, see our Background Checks policy page. [↩]
27. Brand, supra note 6, at 10. [↩]
28. Id. [↩]
29. Id. [↩]
30. See 28 C.F.R. § 25.4.; Brand, supra note 6, at 5. There is considerable uncertainty regarding whether a federal statute requiring states to disclose mental health 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. See also Legal Community Against Violence, Lessons From Virginia Tech: Recommendations for State Law Changes to Close Loopholes in Background Check Systems 4 n.16 (May 2007). [↩]
31. 27 C.F.R. § 478.11. 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 our Prohibited Purchasers policy summary. [↩]
32. 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), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ssprfs05.pdf. [↩]
33. 45 C.F.R. § 164.104. [↩]
34. 45 C.F.R. §§ 164.508, 164.512(a), (f), (j). State privacy laws are similar. See Mass Shootings at Virginia Tech, supra note 7, at 65. The Law Center has not conducted an independent survey of all 50 states’ privacy laws with respect to mental health records. [↩]
35. 28 C.F.R. § 25.1, et seq. [↩]
36. Pub. L. No. 110-180, §§ 102, 104, 121 Stat. 2559 (2008). [↩]
37. Id., §§ 101(c)(1)(A), (1)(B), (1)(C), (2)(B). Under prior law the prohibition on persons “adjudicated as a mental defective” or “committed to a mental institution” was permanent. [↩]
38. See generally 42 U.S.C. § 14601. National Criminal History Improvement Grants are grants made by the federal government to states for programs to upgrade their criminal history record information systems. The federal grant may not exceed 90% of the costs of the program incurred by a state. Id., § 14601(d). [↩]
39. Id., § 102. 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. Id. § 104. [↩]
40. Id., § 103(a), (b). [↩]
41. Id., § 103(c [↩]
42. Id., § 105(a)(1). [↩]
43. Id., § 105(a)(2). [↩]
44. Id. [↩]
45. Id., § 105(a)(3). [↩]
46. Id., § 105(b). [↩]
47. Id., § 102(d). [↩]
48. LCPGV 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. See Legal Community Against Violence, House of Representative Passes “NICS Improvement Act of 2007” with Troubling Amendments (June 15, 2007). [↩]
49. Ala. Code § 22-52-10.8. [↩]
50. Ariz. Rev. Stat. §§ 13-925, 36-540. [↩]
51. Colo. Rev. Stat. §§ 13-5-142, 13-9-123, 15-14-102, 18-4-412(4), 19-1-304. [↩]
52. Conn. Gen. Stat. §§ 17a-500(b), (c)(2), 29-36f(b)(8), 29-36l, 29-38b. [↩]
53. Del. Code Ann. tit. 11, § 8509; tit. 16, §§ 5001, 5161(b)(13)g, (14); tit. 29, § 9107(c). [↩]
54. Fla. Stat. Ann. § 790.065(2)(a)(4). [↩]
55. Ga. Code Ann. §§ 16-11-172(b), 35-3-34(e); Ga. Comp. R & Regs. 140-2-.17. [↩]
56. Idaho Code Ann. §§ 67-3003(1)(i), 66-356, 9-340A(2), 9-340C(6), (13). [↩]
57. 405 Ill. Comp. Stat. 5/6-103.1; 430 Ill. Comp. Stat. 65/3.1, 65/4(3), 65/8.1; 740 Ill. Comp. Stat. 110/12(b). [↩]
58. Ind. Code §§ 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). [↩]
59. Iowa Code §§ 690.4, 692.17, 724.17, 724.3. [↩]
60. Kan. Stat. Ann. §§ 59-2946, 59-2966, 75-7c25. [↩]
61. Ky. Rev. Stat. § 237.108. [↩]
62. Me. Rev. Stat. tit. 25, § 1541(3)(c), tit. 34-B, § 3864(12). [↩]
63. Minn. Stat. §§ 245.041, 253B.09, 253B.24. [↩]
64. Mo. Rev. Stat. §§ 43.503(6), 552.030(7), 610.120(1), 630.140(5). [↩]
65. Neb. Rev. Stat. Ann. §§ 69-2409.01. [↩]
66. 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). [↩]
67. N.J. Stat. Ann. § 2C:58-3, 30:4-24.3; N.J. Admin. Code §§ 10:7-7.1, 13:54-1.4 – 13:54-1.6. [↩]
68. N.Y. Penal Law § 400.00(4); N.Y. Crim. Proc. Law §§ 330.20, 730.60; N.Y. Mental Hyg. Law §§ 7.09(j), 9.11, 13.09(g), 31.11(5), 33.13(b), (c); N.Y. Jud. Ct Acts § 212(2)(q). [↩]
69. N.C. Gen. Stat. § 122C-54(d1). [↩]
70. N.D. Cent. Code § 62.1-02-01.2. [↩]
71. Or. Rev. Stat. §§ 166.412, 166.432, 181.740, 426.130, 426.160, 427.293; Or. Admin. R. 257-010-0060. [↩]
72. 18 Pa. Cons. Stat. §§ 6109(i.1), 6111.1; 50 Pa. Stat. Ann. §§ 7109, 7111; 37 Pa. Code §§ 33.103(e), 33.120. [↩]
73. Tenn. Code Ann. §§ 16-10-213(b), (c), 16-11-206(b), (c), 16-15-303(g)(2), 16-16-120(b), 33-3-115. [↩]
74. Tex. Gov’t Code §§ 411.052, 411.0521. [↩]
75. Va. Code Ann. §§ 19.2-169.2, 19.2-389, 19.2-390, 37.2-819, 37.2-1014. [↩]
76. 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), 1.34.340(16). [↩]
77. W. Va. Code §§ 27-5-4(c)(3), 61-7A-2, 61-7A-3. [↩]
78. Wis. Stat. §§ 51.20(13)(cv)(4), 175.35(2g)(d)(1). [↩]
79. Ark. Code Ann. §§ 5-2-302, 5-2-310(b), 5-2-314, 12-12-209, 20-47-214, 20-47-215. [↩]
80. Cal. Welf. & Inst. Code §§ 8100, 8103 – 8105; Cal. Penal Code § 28220. [↩]
81. Haw. Rev. Stat. Ann. §§ 134-3.5, 334-2.5(c)(4); 334-60.2, 704-406, 704-411. [↩]
82. Md. Code Ann., Health-Gen. § 10-605; Md. Code Ann., Crim. Proc. §§ 3-106(h), 3-112(d);). [↩]
83. Mass. Gen. Laws ch. 123, § 36; ch. 140, §§ 129B(2), 131(e). [↩]
84. Mich. Comp. Laws §§ 28.243(9), 330.1464a, 700.5107, 769.16a – 769.16b. [↩]
85. Ohio Rev. Code  § 5122.311. [↩]
86. Utah Code Ann. § 53-10-208.1. [↩]
87. Cal.Welf. & Inst. Code § 8103(f)(2). [↩]
88. Kan. Stat. §§ 59-2966. The Law Center has not conducted an analysis of the duration of the required confinement in all 50 states. [↩]
89. 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. [↩]
90. 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. [↩]
91. For example, Michigan includes verdicts of guilty but mentally ill in its criminal history reporting law.  Mich. Comp. Laws § 28.243(9). [↩]
92. 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. [↩]
93. Arizona and Nebraska’s laws require reporting to NICS when a formerly mentally ill person’s eligibility to possess firearms is restored. Ariz. Rev. Stat. § 13-925(h); Neb. Rev. Stat. § 69-2409.01. These provisions indicate that at least some reporting of mental health records to NICS is authorized. [↩]
94. In Virginia, in some cases, reporting must be done by local law enforcement instead of courts. [↩]
95. 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. [↩]
96. In 2012, Maryland enacted a law establishing a year-long task force to study the access of individuals with mental illness to “regulated firearms” (handguns and assault weapons). 2012 Md. Ch. 131. The task force must issue a report of its findings on or before December 31, 2012. [↩]
97. States that authorize or require reporting to NICS may also utilize in-state mental health databases when conducting firearm purchaser background checks.  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. [↩]
98. The person is prohibited from possessing firearms for six months, unless he or she petitions for restoration of firearms eligibility sooner.  Cal. Welf. & Inst. Code §§ 8100, 8105. [↩]
99. Alternatively, a state may submit records to the Denied Persons File in bulk so that it may include individuals who are prohibited from possessing firearms under state, as well as federal, law. [↩]
100. Although 38 states report individuals committed to a mental institution as an inpatient, some of these states may only report individuals committed for a lengthy period of time.  Federal law prohibits firearm possession by any individual formally committed to a mental institution.  States should ensure that all such individuals are reported. [↩]