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.
Hawaii requires courts to report people involuntarily committed, as inpatients or outpatients, and, as of January 1, 2017, people appointed guardians due to mental incapacity,3 to the Hawaii criminal justice center, which must in turn transmit this information to NICS. This information must also be available to law enforcement officers for the purposes of Hawaii’s firearms permitting and registration laws.4 The normal rules of confidentiality do not apply.5 Hawaii also provides a procedure for people prohibited from possessing firearms under federal law due to mental illness to regain their gun eligibility.6
Health care providers and public health authorities in Hawaii must disclose mental health information of persons seeking to purchase or own a firearm to county chiefs of police in response to requests for such information.7 This information is to be used solely for evaluating a person’s fitness to acquire or own a firearm.8 Hawaii requires applicants for permits to purchase or acquire firearms to authorize disclosure of mental health information. Applicants must sign a waiver when completing the application that allows the Chief of Police of the county issuing a permit access to any records that have a bearing on the mental health of the applicant.9
The Department of Health is required to keep a medical record of each person committed to the custody of the department or hospitalized because the person is dangerous and there is no less restrictive alternative available, because he or she lacks fitness to proceed in a criminal case, or because he or she has been acquitted on grounds of mental disorder or defect, is dangerous and is not a proper subject for conditional release.10
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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.
- Haw. Rev. Stat. § 560:5-311(d).
- Haw. Rev. Stat. § 334-60.5.
- Haw. Rev. Stat. § 334-5(7).
- Haw. Rev. Stat. § 134-6.5.
- Haw. Rev. Stat. Ann. § 134-3.5.
- Haw. Rev. Stat. Ann. §§ 134-2(c), 134-3.5(2).
- Haw. Rev. Stat. Ann. §§ 334-2.5(c)(4), 704-406(1), 704-411(1).