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.
Although West Virginia does not require the reporting of mental health information to NICS, such reporting is specifically authorized. The state maintains a registry of information pertaining to all persons who have been adjudicated to be mentally defective or who have been committed for treatment of a mental illness pursuant to West Virginia law.3 The Secretary of Department of Health and Human Resources and the circuit clerk of each county are required to provide updated information to the registry on an ongoing basis.4
Information in the registry “may be transmitted” to NICS, as well as to county sheriffs.5 The registry must provide only such information about a person as is necessary to identify registrants.6 The Superintendent, the Secretary, the circuit clerks and the Administrator may provide notice to the registry and NICS that a person:
- Has been involuntarily committed pursuant to West Virginia law;
- Has been adjudicated mentally incompetent in a proceeding under Article 6A of Chapter 61 of the West Virginia Code; or
- Has regained the ability to possess a firearm by order of a circuit court in a proceeding under section 61-7A-5 of the West Virginia Code.7
In 2016, West Virginia passed a law that eliminated from the definition of “mental institution,” a facility used for treatment of persons committed for addiction. Because of this law, records of individuals who have been involuntarily committed for addiction will no longer be reported to the registry or NICS.
Documents filed with a circuit court, mental hygiene commissioner or designated magistrate for the involuntary hospitalization of an individual are generally not open to inspection and may not be published. Under a 2012 law, disclosure of these records may, however, be made by the clerk, circuit court, mental hygiene commissioner or designated magistrate to provide notice to NICS and the central state mental health registry, in accordance with the provisions described above.8
The circuit clerk must provide the Superintendent or his or her designee with a certified copy of any order entered pursuant to state law9 restoring a person’s eligibility to possess a firearm, and the petitioner’s name must be promptly removed from the central state mental health registry and the Superintendent must inform the FBI or other federal entity operating NICS of the court action.10
Communications and information obtained in the course of treatment or evaluation of any client or patient are confidential information that may not be disclosed.11 An exception allows notice to NICS in accordance with state law.12
Any person who is prohibited from possessing a firearm by West Virginia or federal law by virtue solely of having previously been adjudicated to be mentally defective or to having a prior involuntary commitment to a mental institution may petition the circuit court of the county of his or her residence to regain the ability to lawfully possess a firearm.13 The court may only consider petitions for relief due to mental health adjudications or commitments that occurred in this state and only give the relief specifically requested in the petition.14 The petitioner must provide a verified certificate of mental health examination by a licensed psychologist or psychiatrist, occurring within thirty days prior to filing of the petition, which supports that the petitioner is competent and not likely to act in a manner dangerous to public safety.15
In determining whether to grant the petition, the court must receive and consider, at a minimum:
- Evidence concerning the circumstances regarding the firearms disabilities imposed by federal law;
- The petitioner’s record, which must include the petitioner’s mental health and criminal history records; and
- The petitioner’s reputation developed through character witness statements, testimony or other character evidence.16
The court may enter an order allowing the petitioner to possess a firearm if the court finds by clear and convincing evidence that (1) The person is competent and capable of exercising the responsibilities concomitant with the possession of a firearm; (2) The person will not be likely to act in a manner dangerous to public safety; and (3) Granting the relief will not be contrary to public interest.17
The circuit clerk of each county shall provide the Superintendent of the West Virginia State Police and the Administrator of the West Virginia Supreme Court of Appeals with a certified copy of any order which removes a petitioner’s prohibition to possess firearms.18 If the order restores the petitioner’s ability to possess a firearm, his or her name shall be promptly removed from the central state mental health registry and the Superintendent or Administrator shall forthwith inform the federal entity operating NICS of the court action.19
For general information on the background check process and categories of prohibited purchasers/possessors, see the West Virginia Background Check Procedures and West Virginia Firearm Prohibitions sections.
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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.
- W. Va. Code § 61-7A-3.
- W. Va. Code § 61-7A-3(c).
- W. Va. Code § 61-7A-3(b).
- W. Va. Code § 61-7A-3(e).
- W. Va. Code § 61-7A-4.
- W. Va. Code § 27-5-4(c)(3).
- See W. Va. Code § 61-7A-5.
- W. Va. Code § 61-7A-5(b).
- W. Va. Code § 27-3-1.
- W. Va. Code § 27-3-1(b)(4). See W. Va. Code § 61-7A-1 et seq.
- W. Va. Code § 61-7A-5.
- W. Va. Code § 61-7A-5(b).
- W. Va. Code § 61-7A-5(a)(3).
- W. Va. Code § 61-7A-5(b).
- W. Va. Code § 61-7A-5(c).
- W. Va. Code § 61-7A-5(h).