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.
New York requires the state Commissioner of Mental Health to collect, retain or modify mental health records and transmit those records to the New York State Division of Criminal Justice Services or to the Criminal Justice Information Service (CJIS) of the FBI to respond to queries to the NICS database. Such records may also be disclosed to the State Division of Criminal Justice Services for the purpose of determining an individual’s firearms license should be denied, suspended, or revoked under state or federal law. Such records may only include names and other non-clinical identifying information of persons who have been involuntarily committed to a hospital or to a secure treatment facility. A person who is disqualified from having a firearms license because of involuntary commitment or civil confinement may petition the Commissioner of Mental Health for relief where the person’s record and reputation are such that the person is not likely to act in a manner contrary to public safety.3
To ensure that such mental health data is collected for background check purposes, New York requires that:
- Operators of mental health facilities or programs licensed or funded by the state provide to the state Office of Mental Health any records pertaining to persons who may be disqualified from possessing a firearm due to mental illness;4 and
- The Chief Administrator of the Courts in New York state adopt rules to require the transmission, to CJIS or the State Division of Criminal Justice Services, of the name and other identifying information of each person who has a guardian appointed to him or her because of marked subnormal intelligence, mental illness, incapacity, condition or disease, or who lacks the mental capacity to contract or manage his or her own affairs. Any such records transmitted to the FBI must also be transmitted to the State Division of Criminal Justice.5
New York law exempts from the provision stating that mental health data may not be released disclosure to the State Division of Criminal Justice Services for the sole purposes of providing information to the FBI to respond to queries to NICS regarding attempts to purchase firearms.6
In New York, local law enforcement may access the records of the Department of Mental Health to verify that an applicant for a license to purchase and possess a handgun is not prohibited because of a previous or present mental illness.7
Required Reporting by a Mental Health Professional
A “mental health professional” in New York (including physicians, psychologists, registered nurses or licensed clinical social workers) is required to report to the New York Director of Community Services if, in their exercise of reasonable professional judgment, they determine that a person they are treating is “likely to engage in conduct that would result in serious harm to self or others.” That information, limited to names or other non-clinical identifying information, must then be given to the New York Department of Criminal Justice Services for the sole purpose of determining if the person is ineligible to possess firearms under state or federal law. A mental health professional is not required to take any action if doing so would, in their reasonable professional judgment, endanger the professional or increase the danger to potential victims. The decision to disclose information under this law cannot be the basis for civil or criminal liability for the mental health professional when made “reasonably and in good faith.” The Division of Criminal Justice must destroy the information within five years of receipt or after a court determines that the individual is eligible for a New York firearms license.8
Effective January 15, 2014, a firearms license cannot be issued to anyone who has had a guardian appointed because the individual lacks the mental capacity to contract or manage his or her own affairs. A license is also prohibited for individuals who have been involuntarily committed to a mental health facility or civilly confined in a secure mental health facility.9
Court-ordered Outpatient Treatment
In New York in situations where an individual is subject to a court order requiring ongoing assisted outpatient treatment, the director of community services in the county where the individual resides is responsible for determining, prior to expiration of the order, whether the individual needs continued treatment. If the director determines that the individual needs continued treatment, or if the individual has been unwilling to cooperate, the director may, 30 days prior to expiration, petition the court to order continued treatment. The director must notify the program coordinator in writing whether such a petition for continued treatment is warranted and whether such a petition was or will be filed.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.
- N.Y. Mental Hyg. Law §§ 7.09(j), 13.09(g); N.Y. Comp. Codes R. & Regs. tit. 14, § 542.2.
- N.Y. Mental Hyg. Law §§ 7.09(j), 31.11, 33.13(b).
- N.Y. Jud. Law § 212(2)(q).
- N.Y. Mental Hyg. Law § 33.13(c)(13)(ii).
- N.Y. Penal Law § 400.00(4).
- N.Y. Mental Hyg. Law §§ 9.46, 33.13(c)(12), 33.13(c)(15); N.Y. Exec. Law § 837(19).
- N.Y. Penal Law § 400.00(1).
- N.Y. Mental Hyg. Law § 9.60(k).