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To be effective, background checks rely on a search of complete and accurate records to identify people who are legally prohibited from accessing guns. State laws requiring stakeholders to report records to the federal background check system are critical to ensuring the effectiveness of these background checks.

Even in the wake of devastating tragedies such as the shooting at Virginia Tech in 2007, the system intended to limit access to firearms for individuals experiencing a mental health crisis still includes dangerous loopholes. With a more comprehensive system for reporting mental illnesses and conducting background checks, we can avoid putting guns in the hands of people who pose threats to themselves or others.

Background

Even though federal law prohibits the sale of firearms to certain individuals with a history of mental illness, history has shown that it’s still too easy for people experiencing a mental health crisis to obtain firearms. Currently, laws are in place that require licensed dealers (but not unlicensed sellers) to conduct a background check prior to the transfer of a firearm to screen out these and other prohibited purchasers.1

However, federal law cannot require states to make information identifying these people available to the federal or state agencies that perform background checks,2 and many states fail to voluntarily report the necessary records to the FBI’s National Instant Criminal Background Check System (NICS), especially with respect to people prohibited from possessing guns for mental health reasons. As a result, some individuals known to pose a serious risk to themselves and others can pass background checks and obtain firearms.

The Aftermath of Virginia Tech

The most tragic incident involving a state’s failure to report mental health records occurred in April 2007, when Virginia Tech student Seung-Hui Cho shot and killed 32 people and injured 17 others before committing suicide on the college campus in Blacksburg, Virginia. Cho was, in fact, prohibited from purchasing a firearm under federal law because of a history of mental illness.3 However, the unstable gunman was able to purchase firearms through two licensed dealers after two background checks. While Virginia law at that time required that some mental health records be submitted to the databases used for background checks, it did not require reporting of all people prohibited from possessing firearms for mental health reasons.

Increases in State Reporting

Other mass shootings, including those in Tucson, AZ, on January 8, 2011, in Aurora, CO, on July 20, 2012, and in Newtown, CT, on December 14, 2012, have also resulted in renewed calls for better laws addressing guns and mental illness. Our nation’s leaders, including President Obama, have joined these calls,4 and states have begun to respond.

  • The number of mental health records in NICS increased by more than 700% between the Virginia Tech shooting and January 31, 2014.5
  • As of January 31, 2014, there were over 3 million mental health records in NICS,6 with over one million records added in 2013 alone.7

Since the Virginia Tech shooting, about half of the states have enacted laws authorizing and requiring the submission of mental health records to NICS, as described below. States that have enacted such laws have, in fact, subsequently submitted greater numbers of records. Of the states that had submitted the top 15 highest numbers of records as of May 2013, 14 (93%) had enacted such laws, while only two of the 15 poorest performing states (13%) had enacted such laws.8

Much Left to Do

Despite the huge increase in the number of individuals identified in NICS, records of many individuals prohibited from possessing firearms because of their mental health histories are still missing from the database. The greatest gains in the numbers of state records submitted to NICS largely reflect the efforts of a small minority of states,9 and as of November 2013, 12 states had still submitted fewer than 100 records each.10

Effectiveness

When mental health information is submitted to NICS, it can be effective at preventing firearm transfers by licensed dealers to ineligible people. 

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.11 By 2010, this number had risen to 1.8%.12 Mental health records in the system blocked 316 gun sales in Virginia in 2013. This represents a 47% increase from 2010, before Virginia had increased its reporting of such records.13

In 2007, Connecticut began reporting people who were prohibited from possessing firearms because of a history of mental illness to the background check system. The number of violent crimes committed by these people then fell by half.14

Privacy Is Not the Problem

Although some states have cited a concern for privacy as a reason that records have not been submitted to NICS, the mental health records submitted to NICS only identify the individuals through names, birth dates, and similar data, and include no clinical information.15 In addition, as described below, access to information in NICS is tightly controlled.

Summary of Federal Law

Federal Law Regarding Mental Illness and Guns

Federal law and regulations generally prohibit people from selling or otherwise transferring a firearm or ammunition to any person who:

  • Has been found by a court, board, commission, or other lawful authority to be a danger to self or others, or to “lack[] the mental capacity to contract or manage [their] own affairs,” as a result of their mental condition or illness (Federal regulations also expressly state this firearm prohibition applies when a person has been found incompetent to stand trial or not guilty of a crime due to mental incapacity);16or
  • Has been involuntarily hospitalized or committed to a mental health or substance abuse treatment facility by a court, board, commission, or other lawful authority (This prohibition does not apply when a person is admitted for treatment voluntarily or when a person is only hospitalized for short-term observation without longer-term commitment or court-ordered treatment.)17

States may prohibit additional categories of people from purchasing or possessing firearms on the basis of mental illness. Detailed information on these laws is contained in our summary on Firearm Prohibitions.

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The Federal Background Check System

The Brady Handgun Violence Prevention Act (the “Brady Act”) requires licensed dealers to request a background check prior to transfer of a firearm.18 Background checks are performed through a search of NICS.19 For more general information about background check requirements, see our summary on Background Check Procedures.

NICS includes four federal databases. Two of these—the Interstate Identification Index (III) and the NICS Index—contain records that may identify a person as disqualified from possessing firearms on the basis of an adjudication regarding an individual’s mental or developmental disability.

The Interstate Identification Index includes 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. However, most state records that are in NICS and disqualify a person due to a mental health-related adjudication exist in the NICS Index, not the III.

Federal law does not require states to submit information to NICS; participation is strictly voluntary.20However, effective background checks on prospective firearm purchasers depend on the existence of 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 or developmental disability, it is critical that state authorities report to NICS whenever a court, board, or other lawful authority:

  • Determines that a person is a danger to self or others due to their mental condition or illness (even if that person is not involuntarily committed to a mental institution as a result);
  • Determines that a person lacks the mental capacity to contract or manage their own affairs due to their mental condition or illness (depending on state law, this may include a finding that a person is “incapacitated” or disabled by mental illness or developmental disability, or it may result in the appointment of a guardian or conservator);
  • Finds a person not guilty by reason of insanity, mental illness, 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 to a mental health or substance abuse treatment facility or otherwise orders a person to receive inpatient or outpatient treatment.21

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:

  • Provided financial rewards and penalties to encourage states to provide to NICS information relevant to whether a person is prohibited from possessing firearms, including identifying information regarding people adjudicated as a mental defective or committed to mental institutions.22
  • Authorized grants to assist states in establishing and upgrading their reporting and background check systems.23 In order to be eligible for the grants authorized by the Act, a state had to implement a “relief from disabilities” program that met the Act’s requirements.24

Federal Agency Obligations

As described in our policy summary on NICS and Reporting Procedures, federal departments or agencies which have information about people prohibited from possessing firearms must submit records to the Attorney General for inclusion in NICS. This includes people who have become subject to the mental health prohibitor.25

In addition, every federal department or agency that makes any adjudication regarding a person’s mental health or imposes commitment to a mental institution must have a program that allows individuals to petition for “relief from the disabilities” imposed by this adjudication or commitment.26 This relief process allows people who have become prohibited from possessing firearms to regain their firearms eligibility. When a person submits a petition for relief, the department or agency decides whether or not to restore the individual’s eligibility to purchase and possess guns. The department or agency must process an application for relief within 365 days.27 Decisions on relief petitions are subject to judicial review.28

Every federal department or agency that commits or adjudicates a person in a way that would disqualify the person from purchasing or possessing guns under federal law must provide both oral and written notice to the individual at the commencement of the process. This notice must inform the person that, if the agency adjudicates or commits the person in this way, the person will be prohibited from purchasing or possessing firearms. The notice must also inform the person about the federal penalties for unlawful possession of a firearm. Finally, the notice must inform the person about the availability of the relief from disabilities process noted above.29

Privacy and Access to Records

Federal and state privacy laws are sometimes erroneously cited as the reason some states do not provide complete mental health-related records to the FBI.30 However, federal regulations include protections to ensure the privacy and security of mental health records that have been submitted to NICS. Access to data stored in NICS is limited to use in firearm purchaser background checks and other closely related law enforcement activities (such as the issuance of firearms-related permits and enforcement activities by ATF), and safeguards protect against unauthorized disclosures.31

Furthermore, the federal Health Insurance and Portability and Accountability Act of 1996 (HIPAA) and implementing regulations restrict disclosure of protected health information only by healthcare plans, providers, and clearinghouses.32 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.
  • To prevent or lessen a serious and imminent threat to the health and safety of a person or the public.33

In January 2016, the Department of Health and Human Services finalized an amendment to the HIPAA Privacy Rules to directly address mental health reporting to NICS. The new rule explicitly states that certain entities may report certain identifying information to NICS and state agencies that report to NICS.34

Summary of State Law

Forty-seven states have laws that require or authorize relevant stakeholders to report relevant information identifying people who become prohibited from accessing firearms due to a mental health-related adjudication or commitment to the federal NICS database or a state database for use in firearm purchaser background checks. As described below, the scope of these reporting requirements vary, as do the specific procedures and requirements involved.

Reporting Mental Health Records to Federal and State Databases

States that Authorize or Require Reporting of Mental Health Records to Federal and/or State Databases
StateRequires reporting of records of individuals involuntarily committed as inpatientsRequires reporting records of individuals ordered to undergo involuntary outpatient treatment
Requires reporting records of individuals who are under guardianships because they lack the capacity to manage their own affairs
Alabama 35Yes
Alaska 36Yes
Arizona 37YesYes
Yes
California 38YesYes
Yes
Colorado 39Yes
Yes
Connecticut 40Yes
Delaware 41Yes
Florida 42YesYes
Yes
Georgia 43Yes
Hawaii 44YesYes
Idaho 45YesYes
Yes
Illinois 46YesYes
Yes
Indiana 47YesYes
Iowa 48Yes
Kansas 49Yes
Kentucky 50Yes
Louisiana 51Yes
Maine 52Yes
Maryland 53Yes
Yes
Massachusetts 54Yes
Yes
Michigan 55YesYes
Yes
Mississippi 56YesYes
Yes
Missouri 57Yes
Nebraska 58YesYes
Nevada 59YesYes
Yes
New Jersey 60Yes
New Mexico 61Yes
New York 62Yes
Yes
North Carolina 63YesYes
North Dakota 64YesYes
Yes
Oklahoma 65Yes
Oregon 66YesYes
Pennsylvania 67YesYes
Rhode Island 68Yes
South Carolina 69YesYes
South Dakota 70Yes
Tennessee 71YesYes
Texas 72Yes
Yes
Utah 73Yes
Vermont 74YesYes
Virginia 75YesYes
Yes
Washington 76YesYes
West Virginia 77YesYes (state registry only)
Wisconsin 78YesYes
Yes

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

Which Records must be Reported?

Most state laws requiring stakeholders to report records regarding firearm-prohibiting mental health adjudications 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 broader record reporting requirements.

States Identifying Record Reporting Requirements by Reference to Federal and/or State Firearm Laws

About one-third of the states identify at least some of the records that must be reported by referencing those individuals who are subject to federal and/or state firearm prohibitions. Four states (Illinois, Nebraska, New Jersey and Pennsylvania) explicitly include in their record reporting laws all individuals who are prohibited from possessing firearms due to their mental condition under federal or state law. Other states explicitly reference only the federal law and require reporting of records for all individuals who are subject to any federal firearm prohibition.

Records for Individuals Committed as Inpatients

All the states mentioned in this summary include within their reporting requirements at least some people confined to mental health treatment facilities as inpatients, although the length of the required commitment varies. Most of these laws only involve people who have been subject to formal involuntary commitment processes, although there are exceptions. Florida, for instance, enacted a law in 2013 that requires reporting of a voluntarily committed person if a judge or magistrate has classified the person as a danger to self or others because the examining physician certified that a petition for involuntary commitment would have been filed if the person had not consented to treatment.83

Records for People Found Insane in a Criminal Case

About half of the states specifically authorize or require that records be reported to state or federal background check systems for all individuals found not guilty by reason of insanity or who are found guilty but insane in a criminal case. Additional states may report these individuals’ records through broader criminal history reporting laws.

Records for People Found Incompetent to Stand Trial

About half the 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.

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Process for Reporting

Reporting relevant records regarding mental health-related adjudications and commitments 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.

States That Require Reporting to NICS either Directly or through a State Agency

The following states have laws that make it mandatory for courts to provide these records to NICS directly or through a centralized state agency for the purpose of transmitting relevant information to NICS:

States that Require Reporting to NICS

  • Alabama
  • Alaska
  • Arizona
  • California
  • Connecticut
  • Georgia
  • Hawaii
  • Idaho
  • Illinois
  • Indiana84
  • Iowa
  • Kansas
  • Kentucky
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Mississippi
  • Nevada
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • North Dakota
  • Oklahoma
  • Oregon
  • Rhode Island
  • South Carolina
  • South Dakota85
  • Tennessee
  • Texas
  • Utah
  • Virginia
  • Washington
  • Wisconsin

Similarly, Delaware requires hospitals housing mentally ill people to report certain records to the State Bureau of Identification and to NICS.

States Where Disclosure to NICS is Authorized, but not Required

The following states’ laws explicitly authorize, but do not require, reporting to NICS:

  • Colorado86
  • Florida
  • Nebraska87
  • Missouri
  • Pennsylvania
  • West Virginia

States that Collect Mental Health Records but do not Address Disclosure to NICS

The following 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:

  • Arkansas
  • Michigan
  • Ohio

Most of these states require courts to report mental health information to a centralized state agency in connection with firearm purchaser background checks.88

States that Utilize Reports from Mental Health Facilities, Psychotherapists, Law Enforcement, or Schools

The following states utilize reports from mental health treatment facilities about individuals who have fallen into federal or state categories of prohibited firearm purchasers for firearm purchaser background checks:

  • California
  • Delaware
  • Hawaii
  • Illinois
  • Maryland
  • Massachusetts
  • New York
  • Ohio
  • Oregon
  • Washington
  • West Virginia

In some of these states, this reporting takes the place of reporting by courts; in other states, this reporting adds to reporting done by courts.

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, state law requires the psychotherapist to report the person’s identity to local law enforcement, which must in turn report the information to the California Department of Justice for the purposes of firearm purchaser background checks.89

New York adopted a law in 2013 that requires a mental health professional to report any person receiving treatment who is likely to engage in conduct that would result in serious harm to self or others; this information may be used to determine firearms eligibility and must be destroyed after five years.90

Illinois enacted a law in 2013 requiring reporting by any physician, clinical psychologist, qualified examiner, law enforcement official, or the primary administrator for any school who determines that a person presents a “clear and present danger” to self or others, including any person determined to demonstrate threatening physical or verbal behavior.91

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.

Time Period for Reporting

The following states’ laws require courts, agencies, or mental health officials to report relevant information regarding mental health adjudications and commitments within a specified time frame:

Reporting Time Period Requirements
State
Time Frame
Arkansas
Immediately
California
Immediately
Colorado
48 hours
Florida
One month
Kansas
Five days
Illinois
Seven days
Louisiana
25 days
Maryland
“Promptly”
Michigan
Immediately
Minnesota
Within three business days
Mississippi
30 days
Nebraska
As soon as practicable but within 30 days
New Mexico
Upon entry of a court order, judgment or verdict
North Carolina 
48 hours, excluding weekends and holidays
Ohio
Seven days
Pennsylvania
Seven days
Rhode Island
48 hours
South Carolina
Five days
South Dakota
Seven days
Tennessee
As soon as practicable but no later than the third business day
Texas
30 days
Utah
48 hours
Virginia
“as soon as practicable, but no later than the close of business on the following business day”
Washington
Three judicial days
Wisconsin
“In a timely manner”

Reporting Records for Individuals Who Previously Became Subject to Firearm Prohibitions

As noted above, some states have only recently begun reporting people who are prohibited from possessing firearms because of mental illness. As a result, a large number of people are prohibited from possessing firearms because of a prior adjudication or commitment but records regarding their adjudications or commitments have never been reported to relevant background check systemts. A small number of states have undertaken the task of identifying these people from old court records in order to report them to NICS or other databases.

For example, in 2009, Texas enacted a law requiring courts to search through and submit 20 years’ worth of records by September 1, 2010,92 making Texas a leader in the number of records submitted to NICS.93 Similarly, Minnesota enacted a law in 2013 that requires courts to enter all persons civilly committed during the period from January 1, 1994, to September 28, 2010, into NICS by July 1, 2014.94 South Carolina also enacted a law in 2013 that requires courts to search back through a minimum of ten years’ worth of records to identify individuals to be reported.95

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 our summary on Background Check Procedures.

Key Legislative Elements

The features listed below are intended to provide a framework from which policy options may be considered. A jurisdiction considering new legislation should consult with counsel.

  • State law requires reporting anyone prohibited by federal or state law from purchasing or possessing a firearm due to mental illness (California, Illinois, Nebraska, New Jersey, and Pennsylvania).
  • Complete reporting by states of anyone prohibited by federal law from purchasing or possessing a firearm due to mental health-related adjudications or commitments, including any person:
    • Determined by a court or other lawful authority to be a danger to self or others.
    • Determined by a court or other lawful authority to lack the mental capacity to contract or manage their own affairs, including any person appointed a guardian on this basis (15 states).
    • Formally committed involuntarily to a mental health or substance abuse treatment facility as an inpatient (Most states report at least some individuals) or outpatient (21 states).
    • Found not guilty by reason of insanity, mental illness, or lack of mental responsibility in a criminal case.
    • Found guilty but insane in a criminal case.
    • Found incompetent to stand trial.
    • Who otherwise falls within the categories of individuals prohibited under state law from possessing firearms (California, Illinois, Nebraska, New Jersey, Pennsylvania, Texas).
    • Who has previously been subject to these adjudications and commitments before relevant record reporting requirements were adopted (Texas has reported individuals who became prohibited as far back as September 1, 1989).
  • Licensed psychotherapists (California, Illinois, New York), law enforcement officials and school administrators (Illinois) must report relevant information when patients demonstrate violent behavior; these people become prohibited from accessing firearms.
  • Courts must ensure that information is reported to NICS and to a state agency (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 adjudication and commitment records (California, Colorado, Illinois).
  • Mental health treatment facilities report records for individuals who are prohibited from possessing firearms, if such individuals are not reported by courts (California, Delaware, Illinois).
  • Mental health adjudication or commitment 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 summary on Universal Background Checks.[]
  2. See 28 C.F.R. § 25.4. Case law suggests that a federal statute requiring states to disclose 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.[]
  3. 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.[]
  4. See Office of the President, Now is the Time: Gun Violence Reduction Executive Action, at https://obamawhitehouse.archives.gov/sites/default/files/docs/wh_now_is_the_time_actions.pdf; Congressional Gun Violence Prevention Task Force, It’s Time to Act: A Comprehensive Plan That Reduces Gun Violence and Respects the 2nd Amendment Rights of Law-Abiding Americans (Feb. 7, 2013), at http://www.scribd.com/doc/124384563/Gun-Violence-Prevention-Task-Force-Recommendations.[]
  5. Id., Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Dep’t of Justice, Active Records in the NICS Index As of April 30, 2018, at https://www.fbi.gov/file-repository/active_records_in_the_nics-indices.pdf/view.[]
  6. Id.[]
  7. Id., Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Dep’t of Justice, National Instant Criminal Background Check System (NICS) Operations 2012, at http://www.fbi.gov/about-us/cjis/nics/reports/2012-operations-report.[]
  8. Everytown for Gun Safety, Closing the Gaps: Strengthening the Background Check System to Keep Guns Away from the Dangerously Mentally Ill (May 2014), at https://everytownresearch.org/reports/closing-the-gaps/.[]
  9. U.S. General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks, at 9-10 (July 2012), available at http://www.gao.gov/products/GAO-12-684.[]
  10. Mayors Against Illegal Guns, Twenty Years After US Requires Gun Background Checks, New FBI Data Shows Information Gaps Still Allow Criminals to Get Firearms (Nov. 21, 2013), at http://www.demandaction.org/detail/2013-11-twenty-years-after-us-requires-gun-background-checks.[]
  11. U.S. Department of Justice, Background Checks for Firearm Transfers, 2005, Bureau of Justice Statistics Bulletin 5 (Nov. 2006), at http://www.bjs.gov/content/pub/pdf/bcft05.pdf.[]
  12. Bureau of Justice Statistics, U.S. Dep’t of Justice, Background Checks for Firearm Transfers, 2010 – Statistical Tables (Feb. 2013), at http://www.bjs.gov/content/pub/pdf/bcft10st.pdf.[]
  13. Everytown for Gun Safety, Closing the Gaps: Strengthening the Background Check System to Keep Guns Away from the Dangerously Mentally Ill (May 2014), at https://everytownresearch.org/reports/closing-the-gaps/.[]
  14. Jeffrey W. Swanson, Preventing Gun Violence Involving People with Serious Mental Illness, in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis (Johns Hopkins Bloomberg School of Public Health, Center for Gun Policy and Research, edited by Daniel W. Webster and Jon S. Vernick, 2013).[]
  15. Congressional Research Service, Submission of Mental Health Records to NICS and the HIPAA Privacy Rule, CRS Report for Congress (April 15, 2013), at http://www.fas.org/sgp/crs/misc/R43040.pdf.[]
  16. Federal law, enacted in 1968, still uses archaic and offensive terminology to prohibit firearm access by people who have been “adjudicated as a mental defective.”

    Current federal regulations define that term to mean “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.”

    Federal regulations also expressly state that this firearm prohibition applies to:
    “(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 [specified articles] of the Uniform Code of Military Justice.” 27 CFR § 478.11.[]
  17. Federal law generally prohibits firearm access by people who have previously been “committed to a mental institution.” Federal regulations currently define this term to mean:

    “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. 18 U.S.C. § 922(t).[]
  19. Id. In most states, dealers request background checks by contacting the FBI, which performs these background checks by searching NICS. 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.[]
  20. See 28 C.F.R. § 25.4.; U.S. General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks 7 (July 2012), at http://www.gao.gov/products/GAO-12-684.[]
  21. 27 C.F.R. § 478.11.[]
  22. Pub. L. No. 110-180, §§ 102, 104, 121 Stat. 2559 (2008).[]
  23. Id., § 103.[]
  24. Id., § 103(c). In order to be eligible for the grants authorized by the Act, a state had to implement a program that allows a person who falls within the mental prohibited categories described above to petition for restoration of his or her firearms eligibility and requires that such petitions be granted “pursuant to state law and in accordance with the principles of due process, if the circumstances regarding the disabilities … 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.” Id., § 105.[]
  25. 34 U.S.C. § 40911(c)(1).[]
  26. 34 U.S.C. § 40911(c)(2).[]
  27. 34 U.S.C. § 40911(c)(2).[]
  28. Id.[]
  29. 34 U.S.C. § 40911(c)(3).[]
  30. U.S. General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks (July 2012), at http://www.gao.gov/products/GAO-12-684.[]
  31. 28 C.F.R. § 25.1, et seq.[]
  32. 45 C.F.R. § 164.104.[]
  33. 45 C.F.R. §§ 164.508, 164.512(a), (f), (j). State privacy laws are similar. See Mass Shootings at Virginia Tech, supra note 3, at 65.[]
  34. Office of the Secretary, Dep’t of Health and Human Services, Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and the National Instant Criminal Background Check System (NICS), 81 Fed. Reg. 382 (Jan. 6, 2016), at https://www.gpo.gov/fdsys/pkg/FR-2016-01-06/pdf/2015-33181.pdf.[]
  35. Ala. Code § 22-52-10.8.[]
  36. 2013 AK H.B. 366.[]
  37. Ariz. Rev. Stat. §§ 13-609, 13-925, 36-540, 14-5304.[]
  38. Cal. Penal Code § 28220.[]
  39. Colo. Rev. Stat. §§ 13-5-142, 13-9-123, 15-14-102, 18-4-412(4), 19-1-304.[]
  40. Conn. Gen. Stat. §§ 17a-500(b), (c)(2), 29-36f(b)(8), 29-36l, 29-38b.[]
  41. Del. Code Ann. tit. 11, §§ 1448A, 8509; tit. 16, §§ 5001, 5161(b)(13)g, (14); tit. 29, § 9017(c).[]
  42. Fla. Stat. Ann. § 790.065(2)(a)(4).[]
  43. Ga. Code Ann. §§ 16-11-172(b), 35-3-34(e); Ga. Comp. R & Regs. 140-2-.17.[]
  44. 2014 HI. H.B. 2246, Haw. Rev. Stat. Ann. §§ 134-3.5, 334-2.5(c)(4); 334-60.2, 704-406, 704-411.[]
  45. Idaho Code Ann. §§ 67-3003(1)(i), 66-356, 9-340A(2), 9-340C(6), (13).[]
  46. 405 Ill. Comp. Stat. 5/6-103.1, 5/6-103.2, 5/6-103.3; 430 Ill. Comp. Stat. 65/3.1, 65/4(a)(3), 65/8.1; 740 Ill. Comp. Stat. 110/12(b).[]
  47. Ind. Code Ann. §§ 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).[]
  48. Iowa Code §§ 690.4, 692.17, 724.17, 724.31.[]
  49. Kan. Stat. Ann. §§ 59-2946, 59-2966, 75-7c25.[]
  50. Ky. Rev. Stat. § 237.108.[]
  51. La. Rev. Stat. § 13:753.[]
  52. Me. Rev. Stat. tit. 25, § 1541(3)(c), tit. 34-B, § 3864(12).[]
  53. Md. Code, Pub. Safety § 5-133.2; Md. Code, Health-Gen. § 10-605; Md. Code, Crim. Proc. §§ 3-106(h), 3-112(d).[]
  54. 2013 MA H.B. 4376; Mass. Gen. Laws ch. 123, § 36; ch. 140, §§ 129B(2), 131(e).[]
  55. Mich. Comp. Laws Serv. § 330.1464a(1). DSP is required to remove the court order from the law enforcement information network only upon receipt of a subsequent court order for that removal. Id. Moreover, DSP must immediately enter an order into LEIN or remove an order from LEIN as ordered by the court. Mich. Comp. Laws Serv. § 330.1464a(2).[]
  56. Miss. Code Ann. §§ 9-1-49, 45-9-103.[]
  57. Mo. Rev. Stat. §§ 43.503(6), 552.030(7), 610.120(1), 630.140(5).[]
  58. Neb. Rev. Stat. Ann. § 69-2409.01.[]
  59. 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), (5).[]
  60. N.J. Stat. Ann. §§ 2C:58-3, 30:4-24.3, 30:4-24.3a; N.J. Admin. Code §§ 10:7-7.1, 13:54-1.4 – 13:54-1.6.[]
  61. N.M. Stat. Ann. § 34-9-19.[]
  62. N.Y. Penal Law §§ 400.00(4), 400.03(5)-(6); N.Y. Crim. Proc. Law §§ 330.20, 730.60; N.Y. Mental Hyg. Law §§ 7.09(j), 9.11, 9.46, 13.09(g), 31.11(5), 33.13(b), (c); N.Y. Exec. Law § 837(19); N.Y. Jud. Law § 212(2)(q).[]
  63. N.C. Gen. Stat. §§ 122C-54(d1), (d2), 122C-54.1, 14-404(c1).[]
  64. N.D. Cent. Code § 62.1-02-01.2.[]
  65. 2013 OK S.B. 1845 (to be codified as Okla. Stat. tit. 21 § 1290.27).[]
  66. Or. Rev. Stat. §§ 166.412, 166.432, 181.740, 426.130, 426.160, 427.293; Or. Admin. R. 257-010-0060.[]
  67. 18 Pa. Cons. Stat. §§ 6109(i.1), 6111.1; 50 Pa. Stat. Ann. §§ 7109, 7111; 37 Pa. Code §§ 33.103(e), 33.120.[]
  68. R.I. Gen. Laws Section 40.1-5-8.[]
  69. S.C. Code Ann. §§ 23-31-1010, 23-31-1020. See 2013 S.C. Acts 22 (Signed May 3, 2013).[]
  70. S.D. Codified Laws § 27A-10-24.[]
  71. Tenn. Code Ann. §§ 16-1-117(a), 16-3-812, 16-10-213(b), (c), 16-11-206(b), (c), 16-15-303(g), 16-16-120(b), 33-3-115, 33-3-117.[]
  72. Tex. Gov’t Code §§ 411.052, 411.0521.[]
  73. Utah Code Ann. § 53-10-213(2).[]
  74. Vt. Stat. Ann. tit. 13, § 4824 and tit. 18, § 7617a.[]
  75. Va. Code Ann. §§ 19.2-169.2, 19.2-389, 19.2-390, 37.2-819, 64.2-2014.[]
  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), 71.34.340(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. Mich. Comp. Laws §§ 28.243(9), (10), 330.1464a, 700.5107, 769.16a – 769.16b.[]
  81. Ohio Rev. Code § 5122.311.[]
  82. Utah Code Ann. § 53-10-208.1.[]
  83. 2013 Fla. HB 1355 (Approved by the Governor June 28, 2013).[]
  84. 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. See Ind. Code Ann. § 11-10-4-3.[]
  85. In South Dakota, the prosecuting attorney must report people found not guilty by reason of insanity and people found incompetent to stand trial, and a county boardf mental health must report involuntary commitments. 2014 S.D. H.B. 1229. A county board of mental health consists of a lawyer or magistrate appointed by the presiding circuit judge of the county court and two other people appointed by the board of county commissioners; this board is responsible for determining whether people within the county must be involuntarily committed. S.D. Codified Laws §§ 27A-7-1, 27A-10-9.1.[]
  86. Colorado and Nebraska’s laws require reporting to NICS when a formerly mentally ill person’s eligibility to possess firearms is restored. Colo. Rev. Stat. § 13-5-142; Neb. Rev. Stat. § 69-2409.01. These provisions indicate that at least some reporting of mental health records to NICS is authorized.[]
  87. Id.[]
  88. 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 illness to its criminal records central repository. States may utilize in-state mental health databases when conducting firearm purchaser background checks in addition, or as an alternative, to utilizing NICS. 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.[]
  89. The person is prohibited from possessing firearms for five years, unless he or she petitions for restoration of firearms eligibility sooner. Cal. Welf. & Inst. Code §§ 8100, 8105. In 2013, Tennessee enacted a similar law requiring reporting by mental health professionals to law enforcement. See 2013 TN SB 789 § 9.[]
  90. N.Y. Mental Hyg. Law § 9.46; N.Y. Exec. Law § 837(19).[]
  91. 2013 Ill. ALS 63 §§ 105, 145, 150. These people are prohibited from possessing firearms under Illinois law until they have their firearms eligibility restored.[]
  92. 2009 Tex. ALS 950 § 3.[]
  93. Stewart M. Powell, “Texas among leaders in filing gun reports,” Houston Chronicle, June 22, 2011, at http://www.chron.com/news/houston-texas/article/Texas-among-leaders-in-filing-gun-reports-2079219.php; Texas Office of Court Administration, Texas NICS Mental Health Record Improvement Plan Progress, Challenges, and Recommendations (Oct. 2012), at http://www.txcourts.gov/media/273989/nics-record-improvement-plan-final.pdf.[]
  94. 2013 Minn. ALS 86 § 10.[]
  95. 2013 S.C. Acts 22, § 3.[]