Presentation Transcript

1. State Participation in NICS Firearm Background Checks

   ERIC NELSON Assistant Attorney General Washington State Attorney General’s Office November 2013
2. Federal Law Prohibitions Federal – 9 prohibitions conviction greater than one year; fugitive from justice; unlawful user or addiction to any controlled substance; adjudicated as a mental defective or committed to a mental institution; illegal alien; dishonorable discharge; renounced U.S. citizenship; subject to DV restraining order; and convicted of misdemeanor DV. 18 USC 922(g)
3. Federal law mental health prohibition 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).
4. “Adjudicated as a mental defective” Adjudicated as a mental defective. 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
5. “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
6. National Instant Criminal Background Check System (NICS) Operates on a national basis. Consolidates three databases (III, NCIC and the NICS Index). Operates on a near real-time, 24/7 basis. NICS Index has more than 8.3 million records as of 2012 – includes 1.8 million mental health records. More than 10,000 mental health denials since program inception in 1998.
7. Who’s your point of contact (POC)?
8. NICS Improvement Amendments Act of 2007 Waiver of state NCHIP matching fund requirements for 90 percent record completeness. Grants to states to upgrade automation and identification systems. Sliding scale of penalties against Byrne criminal justice grants for non-compliance with record completeness. Conditions: “Reasonable estimate of records” and federal certification of “relief from disabilities” process.
9. NICS Act Record Improvement Program (NARIP) Awards FY 2009-2012
10. Has the NIAA improved reporting? Increase in reporting (126,000 mental health records in 2004 to 1.2 million in 2011) reflects the efforts of 12 states. “[O]ur review suggests that the [NIAA] provisions might not be providing the incentives that were envisioned by the act.” p. 34. GAO, July 2012, GAO-12-684 Top reporting states per capita: VA, WA, MI, NY, CA, TX, CO and MO. Mayors Against Illegal Guns, Nov. 2011.
11. State Laws That Require or Authorize the Reporting of Mental Health Records to NICSAs of January 1, 2013 (Source: CRS, April 15, 2013)
12. What does a state reporting statute look like? “The convicting or committing court shall forward within three judicial days after conviction or entry of the commitment order a copy of the person's driver's license or identicard, or comparable information, along with the date of conviction or commitment, to the department of licensing. When a person is committed by court order under RCW 71.05.240, 71.05.320, 71.34.740, 71.34.750, or chapter 10.77 RCW, for mental health treatment, the committing court also shall forward, within three judicial days after entry of the commitment order, a copy of the person's driver's license, or comparable information, along with the date of commitment, to the national instant criminal background check system index, denied persons file, created by the federal Brady handgun violence prevention act (P.L. 103-159).” RCW 9.41.047(1)(b).
13. Is HIPAA a Barrier to Mental Health Reporting to NICS? Courts are not covered entities -- avoids the HIPAA issue altogether. For covered entities that report, primary HIPAA exception is “required by law.” 45 C.F.R. §164.512(a). Need an express state law provision. Without an express provision, consider exceptions for law enforcement purposes (§164.512(f)) or disclosures to avert a “serious threat to health or safety” (§164.512(j)).
14. Look for a HIPAA Privacy Rule Amendment HHS issued an Advance Notice of Public Rulemaking, April 23, 2013. NASMHPD circulated an HHS questionnaire. Other groups such as NAMI, Electronic Privacy Information Center and gun-rights groups have commented.
15. Where do we go from here? Streamline systems/gain efficiencies. HIPAA rule change may mean you don’t have to wait for a state law change. How well do state law prohibitions work? Surrender laws. Don’t focus exclusively on persons committed or adjudicated. Not statistically significant. Focus on treatment and prevention.