Issue: Gun Violence
Legislative and administration proposals to address gun violence may have an impact on how courts deal with criminal defendants with mental illness, the involuntary commitment process, information contained in court records, and information sharing of data in court records.
No formal position.
As a result of the Newtown, CT massacre, a number of federal legislative and administrative responses have been proposed. Chief among these proposals was the President’s plan, which was unveiled on 1/16/13. There was opposition to the President’s plan especially relating to guns, but there seemed to be bipartisan agreement on the need for mental health funding. On 1/4/16, issued new Executive Actions to reduce gun violence. The actions include working with the states to improve reporting of criminal records by removing barriers to the reporting.
A host of gun violence-related legislative proposals have been introduced. They generally fall into three categories: (1) restrictions or limits on licensing of certain guns; (2) changes in reporting requirements for background checks, including the prohibitor criteria; and (3) increased mental health screening and services.
On 1//7/14, the U.S. Department of Justice released a proposed regulation aimed at clarifying who, due to mental health reasons, is prohibited under federal law from receiving, possessing, shipping, or transporting firearms. The proposed amendments to existing Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regulations were intended to provide general guidance on the federal law and assist states to determine what information can be appropriately shared with the federal background check system – the National Instant Criminal Background Check System (NICS). The proposed revised definition clarifies that the statutory terms “adjudicated as a mental defective” and “committed to a mental institution” include persons who are found incompetent to stand trial or not guilty by reason of mental disease or defect; persons lacking mental responsibility or deemed insane; and persons found guilty but mentally ill, regardless of whether these determinations are made by a state, local, federal or military court. The proposed regulation also clarifies that the statutory term includes a person committed to involuntary inpatient or outpatient treatment. Comments on the proposed regulations were due 4/7/14.
Also, on 1/7/14, the U.S. Department of Health and Human Services released proposed regulations to modify the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to expressly permit certain HIPAA covered entities to disclose to the NICS the identities of individuals who are subject to a federal “mental health indicator” that disqualifies them from receiving, possessing, shipping, or transporting firearms. As proposed, only entities with authority to make adjudication or commitment decisions that make individuals subject to the federal mental health prohibitor or that serve as repositories of information for NICS reporting purposes would be permitted to disclose information to NICS.
For the FY 2016 funding cycle, the President requested $5M for the NICS Improvement Act (down from $25M in FY 2015).
On 10/21/15, Senator Charles Schumer (D-NY) introduced the NICS Reporting Improvement Act (S 2192) to ensure that States submit all records of individuals who should be prohibited from buying a firearm to NICS. The bill would impose graduated penalties on states not electronically submitting data and authorize grants to assist states to comply with the reporting requirements. Grant applicants would be required to certify that the applicant is not prohibited by State law or court order from submitting mental health records to NICS. State court systems would be eligible entities to apply for the grants.
Gun violence is complicating efforts to reform the mental health system. Some of the mental health reforms bills include NICS reporting provisions. For example, Senator John Cornyn’s (R-TX) Mental Health and Safe Communities Act (S. 2002), includes a provision to clarify when persons adjudicated mentally incompetent or who have been committed to a psychiatric hospital should be reported to NICS. Legislative proposals dealing with the restoration of gun rights coupled with mental health legislation will probably not go anywhere in the current Congress due to the recent shootings in Orlando and Dallas. GRO staff is planning a series of congressional information sessions with SEARCH, the justice information group, on updating criminal records files in the states. We are planning to hold the first of these sessions in mid-February.