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.
Nebraska has no law requiring the submittal of mental health records to NICS. However, Nebraska does require that certain mental health records be furnished to the Nebraska State Patrol for the sole purpose of determining whether an individual is prohibited from purchasing or possessing a handgun.3 In addition, the Nebraska Department of Health and Human Services (“HHS”) maintains a database of all persons ordered committed by the various courts or mental health boards after a determination that the person is or will be dangerous to himself, herself or others by reason of mental illness or defect.4 Court clerks are required to furnish such orders and related information to HHS and the Nebraska State Patrol within 30 days of the order of commitment.5 Nebraska law also provides that: “To ensure the accuracy of the data base, any information maintained or disclosed … shall be updated, corrected, modified, or removed, as appropriate, and as soon as practicable, from any data base that the state or federal government maintains and makes available to the National Instant Criminal Background Check System.”6 The procedures for furnishing the information must guarantee that no information is released beyond what is necessary for these purposes.7
Nebraska law provides a process for a person prohibited from firearm possession under federal law because of a mental health-related commitment or adjudication, to petition the mental health board for relief.8 The petitioner must prove by clear and convincing evidence that (1) the petitioner will not be likely to act in a manner dangerous to public safety; and (2) the granting of the relief would not be contrary to the public interest. The mental health board is to consider evidence about the circumstances of the mental health commitment, the petitioner’s record and reputation, and any changes in the petitioners condition. The mental health board must grant relief if it finds that the petitioner has proven by clear and convincing evidence that the firearm-related disabilities should be removed. The petitioner may appeal a denial of the requested relief to the district court. If a person has relief granted, then the commitment or adjudication that lead to the prohibition must not be considered for purposes of reviewing an application for a concealed carry permit or handgun purchase/transfer permit in Nebraska.9
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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.
- Neb. Rev. Stat. § 69-2409.01.
- Neb. Rev. Stat. § 71-963.