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.

Pursuant to a 2008 Virginia law, clerks of court must certify and forward “forthwith” to the Central Criminal Records Exchange (“Exchange”) a copy of any order for treatment issued upon a finding that a defendant, including a juvenile, is incompetent. Such treatment includes both inpatient treatment in a hospital and outpatient treatment.³

The 2008 Virginia law also requires clerks of court to certify and forward to the Exchange a copy of any order from a commitment hearing for: 1) involuntary admission to a mental health facility, as soon as practicable but no later than the close of business on the next business day; or 2) mandatory outpatient treatment, prior to the close of that business day.⁴ Clerks of court must also forward to the Exchange, as soon as practicable but no later than the close of business on the next business day, certification of any person who has agreed to voluntary admission in a mental health facility after being the subject of a temporary detention.⁵ Copies of the orders sent to the Exchange must be kept confidential in a separate file and used only to determine firearms eligibility. The Department of State Police (“DSP”) may forward “only a person’s eligibility to possess, purchase, or transfer a firearm to the National Instant Criminal Background Check System.”⁶ Clerks of court must certify and forward “forthwith” to the Exchange copies of any order adjudicating a person incapacitated as well as an order restoring a person’s capacity. The order and the accompanying forms must be kept confidential and in a separate file and may be used only to determine firearm eligibility.⁷ Identical provisions apply to an order for involuntary admission or mandatory outpatient treatment for a minor 14 years of age or older or the certification of a minor 14 years or older who has agreed to voluntary admission in a mental health facility after being the subject of a temporary detention.⁸

The chief law enforcement officer of a county or city must ensure that any acquittal by reason of insanity is reported to the Exchange immediately following the acquittal.⁹ In addition, court clerks and/or law enforcement (depending on the type of charge) are required to submit reports to the Exchange regarding certain criminal charges that remain pending due to mental incompetency or incapacity of the defendant. Court clerks must submit these reports electronically.¹⁰

Court clerks must certify and forward to the Exchange copies of any order granting a petition to restore the right to purchase, possess or transport a firearm to a person previously ineligible due to any of the conditions mentioned above.¹¹ Such petitions must be granted if a court determines that the circumstances regarding the firearms prohibition and the person’s criminal history, treatment record, and reputation are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.¹²

In response to the Virginia Tech tragedy, Virginia Governor Timothy Kaine issued an Executive Order on April 30, 2007 directing all executive branch employees and law enforcement officials to consider court-ordered outpatient treatment as involuntary admission to a mental health facility, and to report it to the State Police and NICS.¹³ In 2008, this order was partially codified by several of the provisions described above.

In 2014, Virginia enacted a law requires judges and special justices to forward the information above to the clerk of the court “as soon as practicable, but no later than the close of business on the next business day.”¹⁴

Note that a 2002 Virginia Attorney General Opinion determined that the Department of State Police is authorized to provide mental health information to the FBI so long as the information is kept confidential and used only to determine a person’s eligibility to possess, purchase or transfer a firearm.¹⁵

For general information on the background check process and categories of prohibited purchasers or possessors, see the Virginia Background Check Procedures section and the section entitled Firearm Prohibitions.

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1. 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.[↩]
2. 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.[↩]
3. Va. Code Ann. § 19.2-169.2.[↩]
4. Va. Code Ann. § 37.2-819.[↩]
5. Id.[↩]
6. Id.[↩]
7. Va. Code Ann. § 64.2-1014.[↩]
8. Va. Code Ann. § 16.1-337.1.[↩]
9. Va. Code Ann. § 19.2-390.[↩]
10. Id.[↩]
11. Va. Code Ann. §§ 18.2-308.1:1, 18.2-308.1:2, 18.2-308.1:3.[↩]
12. Id.[↩]
13. Va. Exec. Order No. 50 (April 30, 2007).[↩]
14. Va. Code Ann. § 37.2-819.[↩]
15. Va. Att’y Gen. Op. No. 01-062, 2002 Va. AG LEXIS 72 (April 4, 2002).[↩]