ATTORNEY GENERAL DEPARTMENT OF JUSTICE 33 CAPITOL STREET CONCORD, NEW HAMPSIllRE 03301.6397 JOSEPH
A. FOSTER
ANN M. RICE
A'ITORNEY GENERAL
DEPlITY ATIORNEY
July 8, 2016 Chief Justice Linda Dalianis New Hampshire Supreme Court One Charles Doe Drive Concord, NH 03301 Re: Reporting to NICS pursuant to 2016 Chapter Law 13 Dear Chief Justice Dalianis: On April 6, 2016, Governor Hassan signed into law HB I696-FN, which reauthorized the State's form of Medicaid expansion. See 2016 Chapter Law 13. We are writing you to make you aware that the law also contains a provision that expands the State's authority to make reports to the National Instant Criminal Background Check System (NICS). As you know, federal law prohibits individuals who fall within certain statutorily defined categories from possessing a firearm, and prohibits the sale of fireanns to such individuals by any federally licensed firearms dealer. Those who are barred from purchasing or possessing firearms include anyone convicted of a felony, fugitives from justice, certain aliens, persons convicted of qualifying domestic violence misdemeanors, persons subject to domestic violence protective orders, and those who have been "adjudicated as a mental defective or [ ] committed to a mental institution." 18 USC S 922(g). Any individual seeking to purchase a firearm from a federally licensed dealer must certify in writing, under pains and penalties of perjury, that he or she is not prohibited from purchasing the firearm under any of these categories. Before the gun sale is completed, the firearms dealer is required to contact NICS to conlirm that the potential purchaser is, in fact, not prohibited from making the purchase. The NICS maintains a database of persons subject to the firearms prohibition under 18 USC S922(g). Under Federal law, states are not required to submit the data but are strongly encouraged to do so. In recent years, the New Hampshire General Court has taken steps to enhance its reporting and the quality of the data it submits. For example, in 2014, ew Hampshire enacted Joshua's Law, which created the crime of domestic violence thereby assuring accurate reporting is made on those who been convicted of a qualifying domestic violence offense.
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Justice Dalianis Page 2
Most recently, as part of2016 Chapter Law 13, the General Court adopted a provision that states: No person, organization, department, or agency shall submit the name of any person to the National Instant Criminal Background Check System (NICS) on the basis that the person has been adjudicated a "mental defective" or has been committed to a mental institution, except pursuant to a court order issued following a hearing in which the person participated and was represented by an attorney. This language authorizes the reporting to NICS the names of a very limited group of individuals: (a) those who have been found not guilty of a criminal offense by reason of insanity (NGRI) and (b) those whom the probate court has found pose "a potentially serious likelihood of danger to [themselves] or others," requiring commitment on an involuntary basis. RSA 135C:34; RSA 171-B:2. It applies only if the commitment or NGRI determination was preceded by a court hearing, at which the individual was represented by counsel. To be more specific, under the new law, the State of New Hampshire is required to report the following adjudications to the NICS: o o o
o
Individuals who have been involuntarily committed on a non-emergency basis pursuant to RSA 135-C:34-45; Individuals who have been involuntarily committed pursuant to RSA 171-B:2; Individuals who have been found not guilty by reason of insanity, pursuant to RSA 651 :8-a; and, Individuals who have been found incompetent to stand trial and are subsequently ordered admitted to a mental health facility pursuant to RSA 135-C:34, or RSA 171-B:2. See Slale v Buchanan, 155 N.H. 505, 506 (1997).
Some, but not all, individuals who have been appointed a guardian under RSA 464-A are also subject to the firearms prohibition under 18 UCS S 922 (g). However, in order to correctly identify those individuals whose name should be reported to NICS, the statutes will need to be amended to require specific court findings regarding the nature of the person's disability. Thus, they are not included in the list above. The State cannot and will not report: o
o o o
Individuals who seek mental health counseling and treatment; Individuals who use medication to treat mental illnesses; Individuals who voluntarily commit themselves to the State Hospital; or Individuals who have been found incompetent to stand trial but who have not been involuntarily committed
Because the reporting obligation is triggered by a court order, the reporting under this new law should be done through the Court System, as is done for domestic violence convictions.
Justice Dalianis Page 3
The effective date of the new provision was April 5,2016. after that date should be reported to NICS.
Therefore, adjudications made on or
We recognize that the vast majority of individuals suffering from mental illnesses reprcsent absolutely no danger to their families, their communities, or themselves and there is nothing in this law that should deter individuals from seeking out treatment when and if they need to do so. Mental illness is a disease that can be treated, and individuals can recover. Therefore, we have in the past and will again encourage the Legislature to consider implementing a process, as contemplatcd in the NICS Improvemcnt Amendments Act 01'2007, by which individuals, who no longer pose a danger to themselves or others, can petition to have their names removed Ii'om the NICS Index. We look forward to working with the judicial branch to imp1cmentthis new law. If you have questions, please feel free to contact me or Deputy Allorney General Ann Rice. Sincerely,
cc:
#1453201
Govcrnor Margaret Wood lIassan Senator Charles Morse, Senate Presidcnt Representative Shawn Jasper, Speaker Commissioncr John Barthelmes Judge Edwin Kelly Judge David King
