Federal law prohibits possession of a firearm or ammunition by any person who has been “adjudicated as a mental defective” or “committed to any mental institution.”1 No federal law, however, requires states to report the identities of these individuals to the National Instant Criminal Background Check System (“NICS”) database, which the FBI uses to perform background checks prior to firearm transfers.
As noted in the section entitled Mental Health-Related Prohibited Categories, persons with specific mental health issues are barred by California law from possessing, purchasing, receiving, attempting to purchase or receive, or having control or custody of any firearm.2 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.3
Mental health facilities must, within 24 hours, electronically submit a report to DOJ whenever, as a result of a mental health disorder, 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, 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.4 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.5 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.6 Within 24 hours, law enforcement must report this information to DOJ electronically.7 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.8 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.9 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.10
Proposition 63, enacted by California voters in 2016, requires the state Department of Justice to report relevant prohibited person records to the FBI’s NICS system.
See our Mental Health Reporting policy summary for a comprehensive discussion of this issue nationwide.
- 18 U.S.C. § 922(d)(4).
- Cal. Welf. & Inst. Code §§ 8100, 8103.
- Cal. Welf. & Inst. Code § 8103(a)(2), (b)(2), (c)(2), (d)(2), (e)(2).
- Cal. Welf. & Inst. Code § 8103(f)(2), (g)(2).
- Cal. Welf. & Inst. Code §§ 8100(b), 8105(c).
- Cal. Welf. & Inst. Code § 8105(c).
- Cal. Welf. & Inst. Code § 8104.
- Cal Welf. & Inst. Code § 8105(a), (b).
- Cal. Welf. & Inst. Code § 8105(d).