Federal law generally prohibits possession of firearms and ammunition by people who have been found by a court, board, commission, or other lawful authority to be a danger to themselves or others, or to “lack the mental capacity to contract or manage [their] own affairs,” as a result of their mental condition or illness.1 Federal law also generally prohibits people from possessing firearms if they have been involuntarily hospitalized or committed to a mental health or substance abuse treatment facility by a court, board, commission, or other lawful authority.2
No federal law, however, requires states to report the identities of these individuals when they become ineligible to possess firearms to the National Instant Criminal Background Check System (“NICS”) database, which the FBI uses to perform background checks prior to firearm transfers. As a result, state record reporting laws are critical to ensuring the accuracy and effectiveness of the background check system.
Alabama requires judges who enter final orders for involuntary commitment for inpatient treatment to the Department of Mental Health or a Veterans’ Administration hospital to forward such orders to the state’s Criminal Justice Information Center (CJIC). Previously, this requirement applied only to commitment orders based on evidence that the person had a history of inappropriate use of firearms or posed a threat to use firearms inappropriately. However, in 2015, Alabama passed legislation to strengthen its reporting requirement so this law now applies to all final involuntary commitment orders.3 The same law also now requires judges to report records upon any finding that a defendant is insane, mentally incompetent, or not guilty by reason of mental disease or defect under state law.4
In both cases, the judge is required to immediately forward the order of the finding to the Alabama Law Enforcement Agency and the order must then be entered in the Alabama Law Enforcement Agency’s information systems.5 The Alabama Law Enforcement Agency shall then, as soon as possible, enter the order in the National Instant Criminal Background Check System (NICS) and the information shall be entered into the NICS Index Denied Persons File.6 The records may only be used for purposes of determining eligibility to purchase or transfer a firearm and shall not include confidential medical or treatment records.7
Alabama law also states: “To the extent possible, all information from any state or local government agency that is necessary to complete a NICS check shall be provided to the Criminal Justice Information Center.” The law also requires the Alabama Criminal Justice Information Center Commission to promulgate rules and regulations necessary to implement a complete NICS Check. The commission must also ensure that all information received is used solely for the purposes of compliance with NICS and every effort is made to protect the privacy of this information.8
Restoration of rights: Any person who has been adjudicated mentally deficient or committed to a mental institution and who is subject to the federal firearm disabilities of 18 U.S.C. § 922 (d)(4) and (g)(4) and the Alabama state law firearm disabilities of Sections 13A-11-72 and 13A-11-75, because he or she has been determined by law or legal process to be of unsound mind, may petition the district court for a civil review of his or her mental capacity to purchase a firearm.9
The district attorney or the Attorney General who prosecuted the underlying case, if applicable, and victim or victim representative, if applicable, shall be served a copy of the petition by certified mail.10 The petitioner may present evidence and witnesses at the hearing on the petition.11 The district court must make written findings of fact and conclusions of law on the issues before it and issue a final order.12
The district court must grant the relief requested in the petition if the judge finds, based on a preponderance of the evidence presented with respect to the petitioner’s reputation, the petitioner’s mental health record and, if applicable, certified criminal history record from the Alabama Law Enforcement Agency, the circumstances surrounding the petitioner’s firearm disability, and any other evidence in the record, that the petitioner will not be likely to act in a manner that is dangerous to public safety and that granting the relief would not be contrary to the public interest.13
If the final order grants relief, a copy of the order shall be forwarded to the Alabama Law Enforcement Agency directing that the prior order be removed from its information systems.14 The Alabama Law Enforcement Agency must then, as soon as possible, redact the prior order from the National Instant Criminal Background Check System (NICS) or request that the redaction be done and must notify the United States Attorney General that the basis for the record being made available no longer applies.15
The petitioner may appeal a final order denying relief within 42 days of the order to the circuit court for the county in which the commitment or adjudication was entered. The circuit court’s review shall be conducted de novo.16
For general information on the background check process and categories of prohibited purchasers or possessors, see the Alabama Background Checks section and the section entitled Firearm Prohibitions in Alabama.
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- 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.” 18 USC 922(g)(4). Federal regulations define that term to mean:
(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.Federal regulation also expressly clarifies 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.
- Federal law generally prohibits firearm access by people who have previously been “committed to a mental institution.” 18 USC 922(g)(4). Federal regulations 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.
- 2015 AL H.B. 47, amending Ala. Code § 22-52-10.8(a).
- See 2015 AL H.B. 47, Section 2(a)(1).
- Ala. Code § 22-52-10.8(a), 2015 AL H.B. 47, Section 2(a)(1).
- Ala. Code § 22-52-10.8(a), 2015 AL H.B. 47, Section 2(a)(2).
- Ala. Code § 22-52-10.8(a), 2015 AL H.B. 47, Section 2(a)(3).
- Ala. Code § 41-9-649.
- Ala. Code § 22-52-10.8(b), 2015 AL H.B. 47, Section 2(b)(1).
- 2015 AL H.B. 47, Section 2(b).
- Ala. Code § 22-52-10.8(b), 2015 AL H.B. 47, Section 2(b).