Looking Forward from Virginia Tech:
Developments in State Firearms Laws
ERIC NELSON
Assistant Attorney General
Washington State Office of the
Attorney General
2
3
Bullet points for discussion.
• Strategies for reviewing your state firearms
laws.
• Understanding your state background check
system.
• Review of federal law.
• Reporting state mental health records to
National Instant Background Check System
(NICS).
4
State Firearms Laws
• Statutes prohibit individuals with disqualifying
mental illness from possessing firearms (33
states).
• State police power.
• Find your law. Survey of State Procedures
Related to Firearm Sales, 2005 (Bureau of
Justice Statistics). www.ojp.usdoj/bjs/crs.htm
5
6
7
State law prohibitions.
• What mental health findings trigger a
prohibition? (Involuntary civil commitments,
NGRI, incompetency to stand trial, involuntary
outpatient orders, etc…)
• “At the time Cho purchased his weapons, the
general understanding was that only inpatient
orders had to be sent to [the Virginia firearms
database.]” Report of the Virginia Tech Review
Panel, p. 73.
• Later clarified by executive order.
8
What mental health findings do not
result in a prohibition?
• Are all civil commitments prohibitive?
(Example: In Washington State, short term
(14-day) inpatient involuntary commitments
are not prohibitive.)
• Forensic findings (NGRI, findings of not
competent to stand trial)?
• “Mental health courts” or “diversion” courts?
9
Is the State law prohibition
temporary or permanent?
• Arizona:
"Prohibited possessor" means any person:
(a) Who has been found to constitute a danger to
himself or to others pursuant to court order
under section 36-540, and whose court ordered
treatment has not been terminated by court
order. ARS 13-3101.
• Washington State: Prohibition applies to person
“previously” found NGRI or “previously”
involuntarily committed. RCW 9.41.040(2)(a).
10
Restoration of state rights.
• Disqualified person petitions court.
• Burden of proof is clear cogent and
convincing.
• In Oregon, a disqualified person may apply
only once in a calendar year. ORS 166.274.
• Who appears for the state? (In Oregon,
counsel for any jurisdiction may appear for the
state. In Washington, statute does not say
who appears for the state.)
11
State background check systems.
• Does your state conduct background checks
for firearm purchases? (28 states)
• Arizona conducts no state background checks
except for concealed carry permits. (NICS
check only.)
• Georgia recently stopped state checks (NICS
check only).
12
Who’s your POC?
• Single point of contact, or partial point of contact?
• A tale of two states:
Oregon: Dealers contact Oregon State Police for a state
and federal check on all firearms. All state records (mental
health, criminal history, etc…) located within State Police
firearms database. Check is instant.
Washington: 291 local law enforcement agencies perform
checks against multiple state databases (not centralized)
and NICS for handguns and CPLs. State checks take up to
five days. No state checks for long-guns; dealer checks
federal database.
13
14
Additional state issues…
• Does your state have a pattern form for
ineligibility to possess due to mental health?
• Are all notices of ineligibility sent timely to your
state database?
• Does law enforcement have access to mental
health information for firearm background
checks?
• Surrender and forfeiture once a person is
ineligible?
• Background checks at pawn shops and gun
shows?
15
Federal law on mental health and
firearms
It shall be unlawful for any person— … who has
been adjudicated as a mental defective or who
has been committed to a mental institution; … to
ship or transport in interstate or foreign
commerce, or possess in or affecting commerce,
any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.
18 U.S.C. 922(g)(4)(Gun Control Act of 1968).
16
“Adjudicated as a mental defective”
Adjudicated as a mental defective.
(a) A determination by a court, board, commission, or other
lawful authority that a person, as a result of marked
subnormal intelligence, or mental illness, incompetency,
condition, or disease: (1) Is a danger to himself or to others;
or (2) Lacks the mental capacity to contract or manage his
own affairs.
(b) The term shall include-- (1) A finding of insanity by a court in
a criminal case; and (2) Those persons found incompetent to
stand trial or found not guilty by reason of lack of mental
responsibility pursuant to articles 50a and 72b of the
Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.
27 C.F.R. 478.11
17
“Committed to a mental institution”
Committed to a mental institution. A formal commitment of
a person to a mental institution by a court, board,
commission, or other lawful authority. The term includes
a commitment to a mental institution involuntarily. The
term includes commitment for mental defectiveness or
mental illness. It also includes commitments for other
reasons, such as for drug use. The term does not include
a person in a mental institution for observation or a
voluntary admission to a mental institution.
27 C.F.R. 478.11
18
Federal cases on “committed to a mental institution.”
• “Committed to a mental institution” means formal
commitment, not hospitalized for observation and
examination. U.S. v. Hansel, 474 F.2d 1120 (8th Cir., 1973),
accord U.S. v. Giardina, 861 F.2d 1334 (5th Cir., 1988) (formal
judicial commitment required).
• Involuntary admission for psychiatric treatment without
judicial review constitutes “commitment” under NY law.
Defendant “committed” for purpose of Gun Control Act. U.S.
v. Waters, 23 F.3d 29 (2nd Cir. 1994).
• 90-day order by Texas state judge for involuntary treatment
was “committed.” U.S. v. Whiton, 48 F.3d 356 (8th Cir., 1995).
• Involuntary admission under Maine’s five-day emergency
admission statute was “committed” under Gun Control Act.
U.S. v. Chamberlain, 159 F.3d 656 (1st Cir., 1998).
19
More federal cases…
• Finding of incompetency to stand trial and subsequent involuntary
commitment to mental institution was “committed” under Gun
Control Act. U.S. v. Midgett, 198 F.3d 143 (4th Cir., 1999).
• Involuntary admission with five days in psychiatric hospital,
followed by judicial order of 90 days of less restrictive alternative
treatment, meant defendant was “committed.” “It does not appear
that Congress intended to require all commitments to arise from
official judicial orders.” U.S. v. Vertz, WL 1359368 (6th Cir., Mich.
2002) (not reported).
• Finding of mental illness by South Dakota county board and order to
state mental facility for up to 90 days meant defendant was
“committed.” U.S. v. Dorsch, 363 F.3d 784 (8th Cir., 2004).
• Initial detention order, based on physician’s certificate, satisfies
“committed” element. “The term ‘committed’ in the statute refers
to a judicial (or possibly an administrative) order of commitment
and does not depend on the ultimate outcome of the
commitment.” U.S. v. Holt, 464 F.3d 101, 105 (1st Cir., 2006).
20
National Instant Criminal Background
Check System (NICS)
• Established under the Brady Handgun Violence Prevention Act
(1993). 18 U.S.C. §922(s),(t).
• Purchaser fills out ATF form 4473.
• Dealers or law enforcement check NICS and receive approval
prior to proceeding with firearm transfer.
• Operated by FBI solely to check transfers. FBI does not keep
records of purchases.
• State submission of records is voluntary.
• Follows persons across state lines.
• Virginia Tech emphasized the importance of NICS.
• In states without background checks or where state checks
handguns only, NICS is the only background check performed
21
before the gun goes out the door.
More on federal law and NICS…
• No preemption of state law. 18 U.S.C. § 927.
• Immunity. Federal, state and local officials who provide
information to NICS are not liable for failure to prevent an
unlawful sale or preventing a lawful sale. 18 U.S.C. § 922(t)(6).
• Relief of federal disability. 18 U.S.C. §925(c); 27 C.F.R.
478.144(c). BUT, Congress has not funded ATF to process
relief applications. Absence of ATF administrative review
precludes judicial review. U.S. v. Bean, 537 U.S. 71 (2002).
• Mental health prohibition is permanent: “ONCE A PERSON IS
PROHIBITED DUE TO THIS PROHIBITION, THEY WILL BE
PROHIBITED FOR LIFE.” FBI-NICS 03-27-03.
• A person may appeal to NICS for “correction of erroneous
information.” 28 C.F.R. 28.10.
22
Issues to consider when
submitting state records to NICS.
• Confidentiality of mental health records and
statutory authority to submit.
• Frequency of submissions.
• Completeness. (Is your state sending all
applicable records to NICS?)
• Which state agency submits to NICS? (Courts
and law enforcement are not “covered
entities” under HIPAA.)
23
Will Congress require state reporting to NICS?
• NICS Improvement Act of 2007, H.R. 2640
(passed House in June).
• School Safety and Law Enforcement Improvement
Act of 2007, S. 2084.
• Carrot: Participating states eligible for grants to
enhance reporting capabilities.
• Stick: States that do not submit records or
submit enough records would receive a penalty
against law enforcement block grant.
• Supported by both Brady Campaign and NRA.
24