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.
In Colorado, the State Court Administrator must send electronically to the Colorado Bureau of Investigation (CBI) the name of each person determined by the court to be:
- incapacitated by court order;
- committed to the custody of the Colorado Department of Human Services that administers behavioral health programs including those related to mental health and substance abuse;
- ordered for involuntary certification for short-term treatment of mental illness;
- ordered for extended certification for treatment of mental illness; or
- ordered for long-term care and treatment for mental illness.
The State Court Administrator must make such a report not more than 48 hours after receiving notification of a person who meets the above descriptions. However, the State Court Administrator must take all necessary steps to cancel a record in the NICS system if:
- The person to whom the record pertains makes a written request to the State Court Administrator; and
- No less than three years before the date of the written request:
- The period of commitment of the most recent order of commitment expired; or
- A court entered an order terminating the person’s incapacity or discharging the person from commitment in the nature of habeas corpus, if the record in the NICS system is based on an order of commitment to the custody of the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse.3
The State Court Administrator must not cancel any record pertaining to a person with respect to whom two recommitment orders have been entered or who was discharged from treatment on the grounds that further treatment will not likely bring about significant improvement in the person’s condition.4 If a court becomes aware that the basis upon which a record reported by the State Court Administrator to CBI does not apply or no longer applies, the court must:
- Update, correct, modify, or remove the record from any database that the federal or state government maintains and makes available to NICS, consistent with rules pertaining to the database; and
- Notify the Attorney General that such basis does not apply or no longer applies.5
Colorado law also sets forth a judicial procedure for restoring a person’s gun eligibility after being subject to the federal firearm prohibitions for the dangerously mentally ill, pursuant to the federal NICS Act of 2007.6
Colorado specifically authorizes the obtaining, accessing, use or disclosure of relevant medical records or medical information for firearm purchaser background checks purposes by CBI, the clerk of the court of any judicial district, the clerk of the probate court of the city and county of Denver, or by any of their employees, as well as accessing such records and information through the NICS system.7 For general information on the background check process and categories of prohibited purchasers or possessors, see the Colorado Background Checks section and the section entitled Firearm Prohibitions in Colorado.
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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.
- Colo. Rev. Stat. §§ 13-5-142(1)-(3); 13-9-123(1)-(3).
- Colo. Rev. Stat. §§ 13-5-142(3)(b)(II); 13-9-123(3)(b)(II).
- Colo. Rev. Stat. §§ 13-5-142(4); 13-9-123(4).
- See Colo. Rev. Stat. § 13-5-142.5; 13-9-124.
- Colo. Rev. Stat. § 18-4-412(4).