Looking Forward from Virginia Tech: Developments in State Firearms Laws ERIC NELSON Assistant Attorney General Washington State Office of the Attorney General

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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).

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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

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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).

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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).

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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.

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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?

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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).

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“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

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“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

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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 (8 th Cir., 1973),

accord U.S. v. Giardina

, 861 F.2d 1334 (5 th 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 (2 nd Cir. 1994).

90-day order by Texas state judge for involuntary treatment was “committed.”

U.S. v. Whiton

, 48 F.3d 356 (8 th 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 (1 st Cir., 1998).

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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 (4 th 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 (6 th 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 (8 th 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 (1 st Cir., 2006).

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• • • • • • • •

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 before the gun goes out the door.

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• • • • •

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.

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• • • •

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.

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