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ACTION ALERT
States May Alter Policies on Criminal Background Checks for Gun Purchases
May 17, 2007--As a result of the publicity surrounding the recent shootings
at Virginia Tech, many states are re-examining their rules and practices
for submitting the names of certain people with mental disabilities to the
Federal Bureau of Investigation’s list of individuals who are barred
from purchasing a gun.
The issue of concern to mental health advocates is not the need to limit
access to guns (no one wants a person who is dangerous to have such access),
it is the potential for the list of individuals with mental disabilities
to be used for other purposes that is of concern. Many individuals who are
not a danger to self or others may be included on these lists and there is
a significant danger that those names will be shared with other agencies
or entities (legally, accidentally or illegally) in addition to the FBI.
As these state efforts move forward, mental health advocates will want to
be fully informed on the current federal law and on how their states can
make this system work efficiently without creating undue harm for people
who need treatment.
Key Issue is Addition of Names to National Background Check System
Many states have not, until now, paid much attention to the federal Brady
Handgun Violence Prevention Act (18 U.S.C. §922, note) and have not
been sending many (or in some cases any) names to the National Instant Criminal
Background Check System (NICS). There are now efforts in Congress to tighten
the requirements that states submit these names (which the Bazelon Center
and other advocates are attempting to mitigate in terms of potential harm
to individuals with mental illnesses). In the meantime, Governors and state
legislatures across the country are focusing on the NICS and reconsidering
how their states will comply with this requirement in the aftermath of the
shootings at Virginia Tech.
This alert summarizes the federal requirements on the NICS and offers guidance
to ensure that states do not go beyond federal requirements in terms of the
people whose names are included on such lists and take every precaution to
prevent the list from being shared with any party other than the FBI.
Federal Requirements
Federal law and regulation require that states send a list of individuals
who, under the federal Brady Handgun Violence Prevention Act, are barred
from possessing or purchasing a firearm. This is accomplished through the
NICS, run by the FBI. States are required to send information about certain
individuals with mental disabilities to the FBI so these names can be entered
into the NICS.
The federal law applies to individuals who have been “adjudicated
as a mental defective or ha[ve] been committed to any mental institution” (27
C.F.R § 178.11). The applicable regulations define the term “adjudicated
as a mental defective” to include:
Individuals who as a result of mental illness are a danger to themselves
or others; or
Individuals who lack the mental capacity to contract or manage their
own affairs; or
Individuals found to be insane by a court in a criminal case (i.e, not
guilty by reason of insanity or not criminally responsible or other such
equivalent finding).
The regulations specifically exclude individuals who receive care in a mental
institution on a voluntary basis.
Potential State Policies
To comply with the law, and to protect individuals with mental illnesses,
state procedures should:
Limit the categories of individuals whose names are submitted to the
NICS;
Limit the information sent to the NICS to the minimum required by law;
Limit the length of time the name remains on the list;
Protect the privacy of the names submitted.
Limit the Individuals Whose Names are Submitted to the NICS
To those who are committed to an inpatient facility on the basis of
dangerousness to self or others. (Individuals under an outpatient commitment
order need not be forwarded. Outpatient commitment does not fall within
the regulation’s definition of “mental institution,” which
is limited to “facilities”;
Those found by a criminal court to be insane, unless a court determines
they have regained their sanity; and
Those who have been adjudicated as lacking the mental capacity to manage
their own affairs, unless there is a finding that the individual’s
incapacity is limited to only certain specific areas of their life.
Limit the Information Sent to the NICS to the Minimum Required by Law
States should ensure that the information sent to the NICS is limited
to basic identification data (name and address) and that information indicating
that the person has a mental illness, their diagnosis or treatment is never
sent.
Limit the Length of Time the Name Remains on the List
Consistent with the data accuracy and integrity provisions of the NICS regulations
(28 C.F.R § 25.5), states should require that the person’s name
be removed from the list (in other words, that the state agency should inform
the NICS that the person no longer falls within the requirements of the law)
when:
An individual who has been committed as dangerous to self or others
is discharged (California law has such a provision, see California Wellness & Inst.
Code §8100 and §8103.);
An individual found not guilty by reason of insanity is found to have
recovered his or her sanity;
An individual previously denied on the basis of incapacity to manage
his or her own affairs has been found to have regained capacity;
For an individual who had been found a danger to self or others, after
a period of three years, unless there has been a more recent finding of
dangerousness to self or others.
Protect the Privacy of the Names Submitted
Consistent with the restricted-access provisions of the NICS regulations
(28 C.F.R. 25.6(j)), states should prohibit the mental health authority and
any other entity that handles the transmission of this data to the FBI from
sharing this information with:
Any other state agency or state agency official;
Any individual who does not have a specific need to access the information
in order to comply with the Brady Handgun Violence Prevention Act.
What You Can Do
By taking these actions, states can ensure that they are complying with
federal law while also protecting people with mental illnesses and their
right to privacy regarding their health care status.
Watch for indications that your state is taking up this issue. Then work
with legislators, the Governor’s office or any special commission or
task force formed to look at the issue. The state mental health authority
should be heavily involved in writing the specifics of the rules, so advocacy
with that entity is particularly important. ______________________________________________________________________________
Note: Additions to the May 15 Alert on Job Corps Comments
The recent Bazelon Center Alert on proposed changes to the application form
for participation in Job Corps programs, cited the intrusive questions about
mental illness that are proposed for inclusion on that form. Our Alert did
not provide a copy of the form and its questions; they are now linked from
the Alert online.
Fair Use Policy
Please feel free to forward our alerts as long as you credit the Bazelon Center with a link to our website: http://www.bazelon.org
Judge David L. Bazelon Center for Mental Health Law
1101 15th Street, NW, Suite
1212
Washington, DC 20005
