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.
Illinois law requires the Illinois Department of State Police (“DSP”) and the Illinois Department of Human Services to enter into a memorandum of understanding with the FBI for the purpose of implementing NICS.3 The DSP must report the name, date of birth, and physical description of any person prohibited from possessing a firearm pursuant to Illinois or federal law to the NICS Denied Persons File.4 Court clerks, the Department of Human Services, and all public or private hospitals and mental health facilities are required to inform the DSP of any such individual.5 The information disclosed is deemed privileged and confidential, and must be provided in such a way as to guarantee that no information is released beyond what is necessary to determine the eligibility of the person to possess a firearm.6
When a person has been adjudicated as a “mentally disabled person,” as defined by Illinois law , the court is directed to notify DSP within seven days, and DSP must then notify NICS.7 This requirement includes adjudications made by a state probate court.8 Illinois enacted a law in 2016 that requires courts to notify DSP every six months if no person has been adjudicated as a person with a mental disability by the court or if no person has been involuntarily admitted to a mental institution.9
A law adopted in 2013 requires certain school administrators and law enforcement officials to report to the Department of State Police within 24 hours when a person or student is determined to pose a “clear and present danger” to himself, herself, or to others.10 Similarly, if a physician, clinical psychologist, or qualified examiner determines that a person poses a clear and present danger to self or others, or is “developmentally disabled,” as defined, the professional must notify the Department of Human Services within 24 hours, and the Department must transfer this information to DSP for firearm background check purposes.11 If a law enforcement officer determines that any person poses a clear and present danger to self or others, the officer must report this person to DSP within 24 hours. All of this information remains confidential and must not be disclosed beyond what is necessary to determine individuals’ eligibility to lawfully possess a firearm.12
Regarding the use of mental health-related information, Illinois requires that an applicant for a FOID card sign a release that waives confidentiality and authorizes disclosure of his or her mental health information for the sole purpose of determining whether the applicant is or was a patient in a mental health institution and thus disqualified on that basis from receiving a FOID card.13 No mental health care or treatment records may be requested, and this information must be destroyed within one year of receipt.14
Illinois law provides a procedure for individuals subject to federal mental health-related firearm restrictions to petition the State Police to restore their ability to legally access firearms. If this “relief” from the firearm prohibition is granted, the Director of the State Police must, as soon as practicable but in no case later than 15 business days, update, correct, modify, or remove the person’s record in any database that the Department of State Police makes available to NICS.15
For general information on the background check process and categories of prohibited purchasers or possessors, see the Background Checks in Illinois section and the section entitled Prohibited Purchasers Generally in Illinois.
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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.
- 430 Ill. Comp. Stat. 65/3.1(e)(2).
- 740 Ill. Comp. Stat. 110/12(b); 430 Ill. Comp. Stat. 65/8.1(b).
- 740 Ill. Comp. Stat. 110/12(b).
- 405 Ill. Comp. Stat. 5/6-103.1.
- Id.; 755 Ill. Comp. Stat. 5/11a-24.
- 430 Ill. Comp. Stat. 65/8.1(b-1) as added by 2015 Ill. S.B. 2213.
- 405 Ill. Comp. Stat. 6-103.3.
- 740 Ill. Comp. Stat. 110/12(b); 430 Ill. Comp. Stat. 65/8.1(d); 405 Ill. Comp. Stat. 5/6-103.2-103.3.
- Those who report information in compliance with this law may not be held criminally, civilly, or professionally liable for making such reports, except for wanton or willful misconduct. 430 Ill. Comp. Stat. 66/105; 405 Ill. Comp. Stat. 5/6-103.3; 430 Ill. Comp. Stat. 65/8.1.
- 430 Ill. Comp. Stat. 65/4(a)(3).
- 430 Ill. Comp. Stat. 65/10(f).