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.
Georgia law requires the Georgia Crime Information Center (GCIC) to provide to NICS all necessary criminal history information and wanted person records and information concerning persons who have been involuntarily hospitalized for the purpose of completing a NICS check.3
More specifically, GCIC must provide to the FBI in conjunction with the NICS and in accordance with the federal Brady Act information regarding whether a person has been involuntarily hospitalized.4 The probate courts must provide GCIC with information from the involuntary hospitalization records for persons involuntarily hospitalized after March 22, 1995.5 The probate courts must provide such information and no other mental health information, to preserve the confidentiality of patient’s rights in all other respects.6 This information must be provided in a manner agreed upon by the Probate Judges Training Council and the Georgia Bureau of Investigation (GBI).7
Further, the clerks of the superior courts must also provide information regarding whether a person has been adjudicated mentally incompetent to stand trial or not guilty by reason of insanity at the time of the crime, and has been involuntarily hospitalized, based on the clerks’ records for persons involuntarily hospitalized after March 22, 1995.8 This information must be provided in a manner agreed upon by the Council of Superior Court Clerks of Georgia and the GBI to preserve the confidentiality of patient’s rights in all other respects.9 Five years from the date that GCIC receives a person’s involuntary hospitalization information, GCIC must purge its records of such information as soon as practicable and, in any event, within 30 days of the expiration of such five-year period.10
The Council of the GCIC is empowered to adopt rules, regulations, and forms necessary to implement these requirements.11
If an individual is prohibited from purchasing or possessing a firearm as a result of being involuntarily hospitalized within the preceding 5 years, Georgia requires the Crime Information Center to provide the individual or his or her attorney, upon request, with the person’s record of involuntary hospitalization, and to inform the person of his or her right to a court hearing regarding his or her eligibility to possess or transport a handgun.12
For general information on the background check process and categories of prohibited purchasers or possessors, see the Georgia Background Checks section and the section entitled Firearm Prohibitions in Georgia.
- 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.
- Ga. Code Ann. § 16-11-172(a) and (b), certain exceptions apply for records relating to certain alcohol and drug charges if the person has received deferred judgement or probation for a first time offense.
- Ga. Code Ann. § 35-3-34(e)(2).
- Id. See also Ga. Comp. R. & Regs. 140-2-.17(2).
- Ga. Code Ann. § 35-3-34(e)(2).
- Ga. Code Ann. § 35-3-34(e). See Ga. Comp. R. & Regs. 140-2-.17(2).
- Ga. Code Ann. § 35-3-37(r).