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.
Since 2014, Oklahoma has required court clerks to report the identities of these individuals to both the NICS database and to the Oklahoma State Bureau of Investigation whenever a court makes a mental health related adjudication.3 The clerk of the court must also notify the individual of the relevant prohibitions contained within state and federal law concerning possession of a firearm or ammunition by such persons.4
Oklahoma law also provides a procedure for such persons to petition the court in which his or her adjudication or commitment proceedings occurred, or the district court of the county in which the person currently resides, to remove his or her mental health-related firearm disability.5 On filing of the petition, a copy of the petition for relief must be served upon the district attorney for that county. The court then receives and considers evidence in a closed hearing considering:
- Psychological or psychiatric evidence from the petitioner and in support of the petition;
- The circumstances that resulted in the firearm disabilities;
- The petitioner’s criminal history records provided by the state, if any;
- The petitioner’s mental health records;
- The reputation of the petitioner based on character witness statements, testimony or other character evidence;
- Whether the petitioner is a danger to self or others;
- Changes in the condition or circumstances of the petitioner since the original adjudication of mental incompetency or involuntary commitment for a mental illness, condition or disorder relevant to the relief sought; and
- Any other evidence deemed admissible by the court.6
The court must grant the petitioner relief if the petitioner proves by clear and convincing evidence that (1) he or she is not likely to act in a manner that is dangerous to the public safety, and that (2) granting the relief requested is not contrary to the public interest.7 The petitioner may appeal a denial of the requested relief, and review on appeal is de novo.8
If the court grants the petition for relief, the original adjudication of mental incompetency or order of involuntary commitment is deemed not to have occurred for purposes of applying the federal firearm prohibition.9 In such a case, the clerk of the court must promptly forward a certified copy of the order granting relief or transmit the information electronically to the Federal Bureau of Investigation for the sole purpose of inclusion in the NICS database and the Department of Mental Health and Substance Abuse Services and the Oklahoma State Bureau of Investigation.10 The Department of Mental Health and Substance Abuse Services and the Oklahoma State Bureau of Investigation shall then, as soon as is practicable but in no case later than 10 business days, update, correct, modify, or remove the record of the person in any databases that these agencies use or refer to for the purposes of handgun licensing, or make available to the National Instant Criminal Background Check System, and they must notify the United States Attorney that the basis for such record being made available no longer applies.11
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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.
- Okla. Stat. Ann. tit. 21, § 1290.27(A).
- Okla. Stat. Ann. tit. 21, § 1290.27(B).
- Okla. Stat. Ann. tit. 21, § 1290.27(D).
- Okla. Stat. Ann. tit. 21, § 1290.27(E).
- Okla. Stat. Ann. tit. 21, § 1290.27(F).
- Okla. Stat. Ann. tit. 21, § 1290.27(G).
- Okla. Stat. Ann. tit. 21, § 1290.27(H), (I).