Jessica Arenella, Ph.D.

Psychotherapy and Wellness Coaching

Policies

Gun laws:

Mental Health Reporting in New Jersey

Federal law prohibits possession of a firearm or ammunition by any person who has been “adjudicated as a mental defective” or involuntarily “committed to any mental institution.”1 No federal law, however, requires states to report the identities of these individuals to the National Instant Criminal Background Check System (NICS) database, which the FBI uses to perform background checks prior to firearm transfers.

A 2009 New Jersey law created an exception to the rule of confidentiality for inpatient records for when “disclosure is needed to comply with the data reporting provisions of the NICS Improvement Amendments Act of 2007, Pub.L.110-180, and the Brady Handgun Violence Prevention Act of 1993, Pub.L.103-159.” 2

More significantly, a 2013 law states:

In compliance with the federal NICS Improvement Amendments Act of 2007, Pub.L. 110-180 and the Brady Handgun Violence Prevention Act of 1993, Pub.L. 103-159, the Attorney General shall direct the Superintendent of the State Police to collect, in cooperation with the Administrative Office of the Courts, such data as may be required to make a determination as to whether a person is disqualified from possessing or receiving a firearm under 18 U.S.C. § 922 or applicable State law, and to transmit such data to the National Instant Criminal Background Check System administered by the Federal Bureau of Investigation.3

Any person seeking to purchase or possess a firearm in New Jersey must obtain either a permit to purchase a handgun or a Firearms Purchaser Identification Card (FPIC) following a background check, among other requirements.4 Applicants for a permit to purchase a handgun or FPIC must state:

whether he has ever been confined or committed to a mental institution or hospital for treatment or observation of a mental or psychiatric condition on a temporary, interim or permanent basis, giving the name and location of the institution or hospital and the dates of such confinement or commitment, whether he has been attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an inpatient or outpatient basis for any mental or psychiatric condition, giving the name and location of the doctor, psychiatrist, hospital or institution and the dates of such occurrence …5

The applicant must “waive any statutory or other right of confidentiality relating to institutional confinement.” 6

Mental Health Reporting in New York

Federal law prohibits possession of a firearm or ammunition by any person who has been “adjudicated as a mental defective” or involuntarily “committed to any mental institution.”1 No federal law, however, requires states to report the identities of these individuals to the National Instant Criminal Background Check System (NICS)database, which the FBI uses to perform background checks prior to firearm transfers.

New York requires the state Commissioner of Mental Health to collect, retain or modify mental health records and transmit those records to the New York State Division of Criminal Justice Services or to the Criminal Justice Information Service (CJIS) of the FBI to respond to queries to the NICS database.  Such records may also be disclosed to the State Division of Criminal Justice Services for the purpose of determining an individual’s firearms license should be denied, suspended, or revoked under state or federal law.  Such records may only include names and other non-clinical identifying information of persons who have been involuntarily committed to a hospital or to a secure treatment facility.  A person who is disqualified from having a firearms license because of involuntary commitment or civil confinement may petition the Commissioner of Mental Health for relief where the person’s record and reputation are such that the person is not likely to act in a manner contrary to public safety.2

To ensure that such mental health data is collected for background check purposes, New York requires that:

  • Operators of mental health facilities or programs licensed or funded by the state provide to the state Office of Mental Health any records pertaining to persons who may be disqualified from possessing a firearm due to mental illness;3 and
  • The Chief Administrator of the Courts in New York state adopt rules to require the transmission, to CJIS or the State Division of Criminal Justice Services, of the name and other identifying information of each person who has a guardian appointed to him or her because of marked subnormal intelligence, mental illness, incapacity, condition or disease, or who lacks the mental capacity to contract or manage his or her own affairs.  Any such records transmitted to the FBI must also be transmitted to the State Division of Criminal Justice.4

New York law exempts from the provision stating that mental health data may not be released disclosure to the State Division of Criminal Justice Services for the sole purposes of providing information to the FBI to respond to queries to NICS regarding attempts to purchase firearms.5

In New York, local law enforcement may access the records of the Department of Mental Health to verify that an applicant for a license to purchase and possess a handgun is not prohibited because of a previous or present mental illness.6

Required Reporting by a Mental Health Professional

A “mental health professional” in New York (including physicians, psychologists, registered nurses or licensed clinical social workers) is required to report to the New York Director of Community Services if, in their exercise of reasonable professional judgment, they determine that a person they are treating is “likely to engage in conduct that would result in serious harm to self or others.”  That information, limited to names or other non-clinical identifying information, must then be given to the New York Department of Criminal Justice Services for the sole purpose of determining if the person is ineligible to possess firearms under state or federal law.  A mental health professional is not required to take any action if doing so would, in their reasonable professional judgment, endanger the professional or increase the danger to potential victims.  The decision to disclose information under this law cannot be the basis for civil or criminal liability for the mental health professional when made “reasonably and in good faith.”  The Division of Criminal Justice must destroy the information within five years of receipt or after a court determines that the individual is eligible for a New York firearms license.7

Effective January 15, 2014, a firearms license cannot be issued to anyone who has had a guardian appointed because the individual lacks the mental capacity to contract or manage his  or her own affairs.  A license is also prohibited for individuals who have been involuntarily committed to a mental health facility or civilly confined in a secure mental health facility.8

Court-ordered Outpatient Treatment

In New York in situations where an individual is subject to a court order requiring ongoing assisted outpatient treatment, the director of community services in the county where the individual resides is responsible for determining, prior to expiration of the order, whether the individual needs continued treatment.  If the director determines that the individual needs continued treatment, or if the individual has been unwilling to cooperate, the director may, 30 days prior to expiration, petition the court to order continued treatment.  The director must notify the program coordinator in writing whether such a petition for continued treatment is warranted and whether such a petition was or will be filed.9

 

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