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.

As noted in the section entitled Firearm Prohibitions in California, California law’s eligibility requirements are generally broader than federal law and disqualify more people from accessing firearms based on serious histories of mental instability or impairments.³ With certain limited exceptions, courts must submit an electronic report to the California Department of Justice (“DOJ”), within one court day, when they adjudicate someone to be a danger to others as a result of a mental disorder or mental illness, a mentally disordered sex offender, not guilty of a crime by reason of insanity, mentally incompetent to stand trial, or placed under conservatorship because the individual is gravely disabled due to a mental disorder.⁴

Mental health facilities must also, within 24 hours, electronically submit a report to DOJ whenever an individual is taken into custody and admitted to a designated facility upon an evaluation and determination that he or she is a danger to himself, herself, or others as a result of a mental health disorder, or whenever an individual is certified for intensive treatment at a mental health facility based on a finding that he or she is gravely disabled due to a mental disorder or chronic alcoholism.⁵ This electronic report must at least include the identity of the person admitted to the facility or certified for intensive treatment, and the legal grounds upon which the person was admitted or certified for treatment.⁶ This requirement applies both to individuals taken into custody for 72 hours and to individuals detained for 14 days.

Licensed psychotherapists also are required to report to local law enforcement, within 24 hours, the identity of a person who communicates a serious threat of physical violence against a reasonably identifiable victim or victims.⁷ Within 24 hours, law enforcement must report this information to DOJ electronically.⁸ The State Department of State Hospitals must also make available to DOJ, and provide to DOJ in electronic format when requested, all records pertinent to whether a person is prohibited from possessing firearms under California law due to mental illness.⁹ Finally, public and private mental health facilities must, when requested by DOJ, submit information that DOJ deems necessary to identify those persons who are prohibited from possessing firearms because they pose a threat to self or others due to mental illness.¹⁰ The reports from mental health facilities, the State Department of State Hospitals, and psychotherapists must be kept confidential, separate, and apart from other records maintained by DOJ, and may only be used to determine a person’s eligibility to possess a firearm.¹¹

Proposition 63, enacted by California voters in 2016, requires the state Department of Justice to report relevant records regarding people who are ineligible to possess firearms to the FBI’s NICS background check system.

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1. 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.[↩]
2. 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.[↩]
3. Cal. Welf. & Inst. Code §§ 8100, 8103.[↩]
4. Cal. Welf. & Inst. Code § 8103(a)(2), (b)(2), (c)(2), (d)(2), (e)(2).[↩]
5. Cal. Welf. & Inst. Code § 8103(f)(2), (g)(2).[↩]
6. Id.[↩]
7. Cal. Welf. & Inst. Code §§ 8100(b), 8105(c).[↩]
8. Cal. Welf. & Inst. Code § 8105(c).[↩]
9. Cal. Welf. & Inst. Code § 8104.[↩]
10. Cal Welf. & Inst. Code § 8105(a), (b).[↩]
11. Cal. Welf. & Inst. Code § 8105(d).[↩]