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.
Before 2015, Vermont had no laws requiring the reporting of mental health information to NICS, and Vermont still has no law requiring the reporting of mental health information to NICS regarding individuals who have been found by a court, board, commission, or other lawful authority to be a danger to self or others, or to lack the mental capacity to contract or manage their own affairs.
However, in 2015, Vermont enacted a law requiring the Court Administrator to report to NICS the identities of individuals subject to a court ordered mental health commitment, hospitalization, or treatment within 48 hours after the court order.3 The report shall include only information sufficient to identify the person, the reason for the report, and a statement that the report is made in accordance with federal law, 18 U.S.C. Section 922(g)(4).4 Such reports are confidential and generally exempt from public inspection and may not be used for any purpose other than for submission to NICS.5 A copy of the report must also be provided to the person who is the subject of the report, with a written notice to the person who is the subject of the report that he or she is not thereafter permitted to possess a firearm.6
The law also requires the state Department of Mental Health to report to the Court Administrator, on or before October 1, 2015, the names of all persons under the custody of the Department who are currently subject to such court orders and requires the Court Administrator to report those names to the NICS database.7
The law also enacted a procedure for persons prohibited by federal law from possessing firearms due to mental illness to petition the Family Division of the Superior Court for relief from the federal firearm prohibition.8 The petition must be filed in the county where the offense or the adjudication occurred.9 When the petition is filed, the petitioner must provide notice and a copy of the petition to the State’s Attorney or the Attorney General, who shall be the respondent in the matter.10 The Court is required to grant the petition without a hearing if neither the State’s Attorney nor the Attorney General files an objection within six months after receiving notice of the petition, or if the respondent and petitioner stipulate to the granting of the petition.11
If the Court does not grant the petition without a hearing, as outlined above, the Court shall consider:
- the circumstances regarding the firearms disabilities imposed on the person by 18 U.S.C. § 922(g)(4);
- the petitioner’s record, including his or her mental health and criminal history records; and
- the petitioner’s reputation, as demonstrated by character witness statements, testimony, or other character evidence.12
The Court shall grant the petition if it finds that the petitioner has demonstrated by a preponderance of the evidence that her or she is no longer a person in need of treatment.13 A “person in need of treatment” means “a person who has a mental illness and, as a result of that mental illness, his or her capacity to exercise self-control, judgment, or discretion in the conduct of his or her affairs and social relations is so lessened that he or she poses a danger of harm to himself, to herself, or to others.”14
If the petition is granted, the Court is required to enter an order declaring that the basis under which the person was prohibited from possessing firearms by 18 U.S.C. § 922(g)(4) no longer applies. The Court shall then inform the FBI, NICS, and the U.S. Attorney General, of its decision.15 If the Court denies the petition, the petitioner may then appeal the denial to the Vermont Supreme Court for a de novo review on the record.16 The person may also re-file a petition at least one year after the order of the trial court, or of the Supreme Court if an appeal is taken, becomes final.17
For general information on the background check process and categories of prohibited purchasers or possessors, see the Vermont Background Check Procedures section and the section entitled Firearm Prohibitions in Vermont.
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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.
- See 2015 VT S.B. 141, enacting Vt. Stat. Ann. tit. 13, § 4824 and tit. 18, § 7617a.
- See 2015 VT S.B. 141, Sect. 8
- See 2015 VT S.B. 141, enacting Vt. Stat. Ann. tit. 13, § 4825.
- Vt. Stat. Ann. tit. 13, § 4825(a)(1).
- Id. At the time a petition is filed, the respondent must give notice of the petition to a victim of the offense, if any, who is known to the respondent. The victim shall have the right to offer the respondent a statement prior to any stipulation or to offer the Court a statement. Vt. Stat. Ann. tit. 13, § 4825(g).
- Vt. Stat. Ann. tit. 13, § 4825(a)(2)(A), (B).
- Vt. Stat. Ann. tit. 13, § 4825(b).
- Vt. Stat. Ann. tit. 13, § 4825(c).
- Vt. Stat. Ann. tit. 18, § 7101(17).
- Vt. Stat. Ann. tit. 13, § 4825(d).
- Vt. Stat. Ann. tit. 13, § 4825(e).
- Vt. Stat. Ann. tit. 13, § 4825(f).