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.
Florida law generally prohibits firearm access by these same individuals based on adjudications regarding mental capacity or dangerousness to self or others, or based on court ordered commitment to receive either outpatient or inpatient mental health or substance abuse treatment.3
Florida law requires the Florida Department of Law Enforcement (FDLE) to compile and maintain an automated database of persons who are prohibited from purchasing a firearm based on court records of adjudications of mental defectiveness or commitments to mental institutions.4 Clerks of court must submit these records to FDLE within one month after the rendition of the adjudication or commitment.5 Such reports must be submitted in an automated format. The reports must, at a minimum, include the name, along with any known alias or former name, the gender, and the date of birth of the subject.6
FDLE is authorized, but not required, to disclose the collected data to agencies of the federal government and other states for use “exclusively” in determining the lawfulness of a firearm sale or transfer. FDLE is also authorized to disclose any collected data to the Department of Agriculture and Consumer Services for the purpose of determining eligibility for a concealed weapons or concealed firearms license and for determining whether to revoke or suspend such a license.7
In 2013, Florida enacted a law that includes a person voluntarily admitted to a mental institution for outpatient or inpatient treatment in the definition of “committed to a mental institution” if: (1) an examining physician has determined that the person poses an imminent danger to himself, herself, or others and has certified that he or she would have filed a petition for involuntary commitment if the person had not agreed to voluntary treatment; (2) the person has been given notice and an opportunity to contest this certification; and (3) a court has reviewed this certification and ordered the person’s record to be submitted.8
Restoration of Firearms Eligibility:
A person who has become subject to Florida’s mental health-related firearm restrictions as defined above may petition the Circuit Court that made the adjudication or commitment for relief from the firearm prohibition.9 A copy of the petition must be served on the state attorney for the county in which the person was adjudicated or committed. The state attorney may object.10 The court must grant the relief if it finds, based on evidence presented regarding the petitioner’s reputation, mental health record and criminal history record, the circumstances surrounding the firearm disability, and any other evidence, that the petitioner is not likely to act in a manner dangerous to public safety and that granting the relief would not be contrary to the public interest. If the final order denies relief, the petitioner may not petition again for one year.11
For general information on the background check process and categories of prohibited purchasers or possessors, see the Florida Background Check Procedures section and the section entitled Firearm Prohibitions in Florida.
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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.
- Fla. Stat. § 790.065(2)(4). Like federal law in this area, Florida law uses archaic and offense terminology to prohibit firearm access by individuals who have been “adjudicated mentally defective” or “committed to a mental institution.” For the purposes of state law firearm restrictions, Florida law defines these terms as follows:
“’Adjudicated mentally defective’” means a determination by a court that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease, is a danger to himself or herself or to others or lacks the mental capacity to contract or manage his or her own affairs. The phrase includes a judicial finding of incapacity under s. 744.331(6)(a), an acquittal by reason of insanity of a person charged with a criminal offense, and a judicial finding that a criminal defendant is not competent to stand trial.”
“’Committed to a mental institution’” means involuntary commitment, commitment for mental defectiveness or mental illness, and commitment for substance abuse. The phrase includes involuntary inpatient placement as defined in s. 394.467, involuntary outpatient placement as defined in s. 394.4655, involuntary assessment and stabilization under s. 397.6818, and involuntary substance abuse treatment under s. 397.6957, but does not include a person in a mental institution for observation or discharged from a mental institution based upon the initial review by the physician or a voluntary admission to a mental institution.”
- Fla. Stat. § 790.065(2)(a)(4).
- Fla. Stat. § 790.065(2)(a)(4)(c)(I). However, if a person was committed to a mental institution following voluntary admission where a subsequent involuntary examination found the person was an imminent danger to self or others, the administrator of the receiving or treatment facility must submit a record of that finding, with certain other certifications and notices, to the clerk of the court for the county in which the involuntary examination occurred within 24 hours of the person’s agreement to voluntary admission. Fla. Stat. § 790.065(2)(a)(4)(c)(II). The clerk must present these records to a judge or magistrate within 24 hours and the judge or magistrate must, upon determining that the record supports classifying the person as an imminent danger to self or others, submit such records to FDLE within 24 hours. Id.
- Fla. Stat. § 790.065(2)(a)(4)(c).
- Fla. Stat. § 790.065(2)(a)(4)(f). When a potential buyer or transferee appeals a nonapproval based on these records, the clerks of court and mental institutions must, upon request by FDLE, provide information to help determine whether the potential buyer or transferee is the same person as the subject of the record. Photographs and any other data that could confirm or negate identity must be made available to FDLE for such purposes, notwithstanding any other provision of state law to the contrary. Any such information that is made confidential or exempt from disclosure by law must otherwise remain confidential. Id.
- See Fla. Stat. § 790.065(2)(a)(4)(b)(II).
- Fla. Stat. § 790.065(2)(a)(4)(d).
- An order denying relief may be appealed to the District Court of Appeal. Id. Upon receipt of proper notice of relief from the firearm prohibition, the Department of Agriculture and Consumer Services must delete the mental health record from the automated database. Fla. Stat. § 790.065(2)(a)(4)(e).