Bill Text: NJ S386 | 2018-2019 | Regular Session | Introduced
Bill Title: Authorizes persons with certain records of mental illness to petition court for relief from federal firearms prohibition.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2018-01-09 - Introduced in the Senate, Referred to Senate Law and Public Safety Committee [S386 Detail]
Download: New_Jersey-2018-S386-Introduced.html
STATE OF NEW JERSEY
218th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2018 SESSION
Sponsored by:
Senator FRED H. MADDEN, JR.
District 4 (Camden and Gloucester)
Senator LINDA R. GREENSTEIN
District 14 (Mercer and Middlesex)
SYNOPSIS
Authorizes persons with certain records of mental illness to petition court for relief from federal firearms prohibition.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning relief from certain federal firearms disabilities, supplementing Title 2C of the New Jersey Statutes, and amending P.L.1965, c.59 and P.L.1953, c.268.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) As used in this act:
"Federal firearms prohibition" means a law or regulation that bars a person's receipt, purchase, possession, or other acquisition of a firearm under 18 U.S.C. ss. 922(d)(4) and (g)(4); the NICS Improvement Amendments Act of 2007, Pub.L.110-180; and the Brady Handgun Violence Prevention Act of 1993, Pub.L.103-159.
"Involuntarily committed for a mental illness" means a formal commitment of a person to a mental health facility by a New Jersey court pursuant to P.L.1987, c.116 (C.30:4-27.1 et al.). The term also shall include an involuntary commitment for other reasons, such as for drug use. The term shall not include a commitment to a mental health facility for observation or a voluntary admission to a mental health facility.
"Mental health adjudication" means a determination by a New Jersey court that a person, as a result of marked subnormal intelligence, mental illness, or a mental condition or disease is a danger to the person or others, or lacks the mental capacity to contract or manage the person's own affairs. The term also shall include a finding:
(1) of insanity by a court in a criminal case;
(2) that the person is an incapacitated individual as defined in N.J.S.3B:1-2; and
(3) by a court that a person is incompetent to stand trial or not guilty by reason of insanity due to lack of mental responsibility.
"Mental health facility" means a special psychiatric hospital or outpatient treatment provider as defined in section 2 of P.L.1987, c.116 (C.30:4-27.2), psychiatric facility, and any other facility where diagnoses and treatment is provided by licensed professionals of mental disabilities or mental illness and is licensed and inspected by the Department of Health pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.).
2. (New section) A person who has a mental health adjudication or has been involuntarily committed for a mental illness and who has been discharged from the mental health facility as recovered, or whose illness, upon discharge, or subsequent to discharge or determination, is substantially improved or in substantial remission may petition the Superior Court for an order relieving the person from a federal firearms prohibition. The petition shall be on a form prescribed by the Administrative Director of the Courts. The petition shall be verified and, at a minimum, shall include:
a. the petitioner's name and any alias used;
b. the petitioner's date of birth;
c. the petitioner's street address at the time of the petitioner's mental health adjudication or involuntary commitment for a mental illness and the petitioner's current street address;
d. the date of the adjudication or commitment and the mental health facility to which the petitioner was committed;
e. a statement as to whether the petitioner is currently receiving psychiatric care or mental health services and the name and address of the provider;
f. a statement as to whether the petitioner is currently charged with any offense or has been convicted of any offense, including the date and place of the charge or conviction and whether the petitioner is currently serving a term of probation or parole;
g. a statement as to whether the petitioner is the subject of any restraining order, including the date of the order and where the order was entered;
h. an opinion from a licensed psychiatrist or psychologist as to whether the petitioner would, because of mental illness, be a risk to himself or others if permitted to possess a firearm; and
i. any other information required by the court relevant to the petition.
3. (New section) a. The petitioner shall consent to release of any records relevant to the petition, including any records that previously may have been expunged pursuant to law, for use by the court or law enforcement authorities solely for determining whether relief should be granted, or in any appeal of the court's decision to deny relief.
b. The petitioner shall consent to the release of information relevant to the petition concerning treatment by a physician or health care provider who is currently providing psychiatric care or mental health services to the petitioner for use by the court, when necessary, solely for determining whether the relief sought in the petition should be granted, or in any appeal of the court's decision to deny relief.
4. (New section) Upon receipt of the petition, the court, by order, shall fix a time, not less than 35 or more than 60 days thereafter, for the hearing of the matter. Within five days from the date of the order setting the date for the hearing upon the matter, a copy of the petition, together with a cover notice prescribed by the Administrative Director of the Courts and a copy of all supporting documents, shall be served in accordance with the Rules of Court upon:
a. the county adjuster of the county where the petitioner was committed or received a mental health adjudication;
b. the medical director of the mental health facility to which the petitioner was committed or upon the party who applied for the determination that the person receive a mental health adjudication;
c. the prosecutor of the county where the petition was filed;
d. (1) if the petitioner is a resident of New Jersey, upon the Attorney General of New Jersey; the chief of police of the municipality in which the petitioner resides, or the Superintendent of State Police if there is no police force; and the chief of police of the municipality in which the petitioner resided at the time of commitment, or the Superintendent if there is no police force; or
(2) if the petitioner is not a resident of New Jersey, upon the Attorney General of New Jersey; the chief of police of the municipality in which the petitioner resided at the time of commitment, or the Superintendent of the New Jersey State Police if there is no police force; the Attorney General of the state where the petitioner currently resides, and the chief of police of the county or municipality where the petitioner currently resides; and
e. any physician or health care provider who currently is providing psychiatric care or mental health services to the petitioner.
5. (New section) a. Notwithstanding the notice requirements provided in section 4 of this act, the county prosecutor of the county where any petition for relief is filed shall represent the public safety interests of the State by reviewing the statements contained in the petition for relief from a federal firearms prohibition and submitting to the court any facts which may be a bar to or which may make inappropriate the granting of this relief. The prosecutor shall provide the court with the petitioner's criminal history records, if any.
b. For the purposes of subsection a. of this section, a petitioner shall submit to being fingerprinted in accordance with applicable State and federal laws, rules, and regulations for the purpose of a criminal history record background check to be performed by the Superintendent of State Police at the request of the county prosecutor. A criminal history record background check shall not be performed pursuant to this subsection unless the petitioner has provided written consent to the check. A petitioner who refuses to consent to, or cooperate in, a criminal history record background check shall not be granted an order relieving the petitioner from a federal firearms prohibition. The petitioner shall bear the cost of the criminal history record background check, including all costs of administering and processing the check. The superintendent shall compare the person's fingerprints with information on file with the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal laws, rules, and regulations.
6. (New section) The petitioner may present evidence and witnesses at the hearing on the petition. The court shall review the evidence presented. The court shall create and thereafter maintain a record of the proceeding.
7. (New section) In determining whether to grant relief, the court shall consider:
a. the underlying circumstances that led to the federal firearms prohibition;
b. the petitioner's history of mental illness and current recovery status;
c. the petitioner's criminal history and any restraining orders that may exist;
d. the petitioner's reputation in the community, developed, at a minimum, through character witness statements, testimony, and other character evidence;
e. changes in the petitioner's condition or circumstances relevant to the relief sought;
f. any relevant information provided by law enforcement officials regarding the accuracy of information provided by the petitioner or the potential risk to public safety that may be caused by granting relief from the federal firearms prohibition;
g. any information received from a physician or health care provider in response to a notice of the filing of a petition for relief under this act; and
h. any other information deemed relevant by the court.
8. (New section) a. The court shall grant relief only when it finds on the record, based on clear and convincing evidence, that the person is not likely to act in a manner dangerous to public safety and that it is not contrary to the interest of the public to remove the federal firearms prohibition.
b. The court's order shall specify that the relief granted applies only to the federal firearms prohibition resulting from the petitioner's mental health adjudication by a court of this State or for involuntary commitment to a mental health facility and shall have no effect on any other prohibition or disability related to a person's receipt, purchase, possession, or other acquisition of a firearm created under federal or State law or administrative authority.
c. A petitioner shall be entitled to de novo review of a denial of relief under this act as provided in the Rules of Court.
d. Relief granted under this act shall not be construed to be an expungement of a civil commitment record under the provisions of P.L.1953, c.268 (C.30:4-80.8 et seq.).
9. (New section) Upon a grant of relief, the court shall coordinate with the Superintendent of State Police the transmittal of the order of relief from a federal firearms prohibition to the appropriate federal authorities for entry into the National Instant Criminal Background Check System.
10. (New section) All proceedings under this act shall be closed to the public. All records of the proceedings shall be confidential and shall not be subject to disclosure other than to persons participating in the proceedings as described in this act or as authorized by the court or the petitioner.
11. (New section) A petitioner who knowingly makes a false statement or knowingly provides false information in relation to a petition filed under this act commits a crime of the third degree.
12. (New section) a. An expungement of a civil commitment record ordered by the court pursuant to P.L.1953, c.268 (C.30:4-80.8 et seq.) prior to the effective date of P.L. c. (pending before the Legislature as this bill) shall relieve a federal firearms prohibition based on a New Jersey mental health adjudication submitted to the National Instant Criminal Background Check System only if the relief was sought in the expungement petition and was granted by the court.
b. An expungement of a civil commitment record pursuant to P.L.1953, c.268 (C.30:4-80.8 et seq.) that may be ordered by the court after the effective date of P.L. c. (C. et al.) (pending before the Legislature as this bill) shall not relieve a person from a federal firearms prohibition based on a New Jersey mental health adjudication submitted to the National Instant Criminal Background Check System. A party seeking relief from the federal firearms prohibition based on a New Jersey mental health adjudication submitted to the National Instant Criminal Background Check System after such effective date shall proceed under the provisions of P.L. c. (C. et al.) (pending before the Legislature as this bill).
13. Section 11 of P.L.1965, c.59 (C.30:4-24.3) is amended to read as follows:
11. All certificates, applications, records, and reports made pursuant to the provisions of Title 30 of the Revised Statutes and directly or indirectly identifying any individual [presently] currently or formerly receiving services in a noncorrectional institution under Title 30 of the Revised Statutes, or for whom services in a noncorrectional institution shall be sought under this act shall be kept confidential and shall not be disclosed by any person, except insofar as:
a. the individual identified or his legal guardian, if any, or, if he is a minor, his parent or legal guardian, shall consent; [or]
b. disclosure may be necessary to carry out any of the provisions of this act or of article 9 of chapter 82 of Title 2A of the New Jersey Statutes; [or]
c. a court may direct, upon its determination that disclosure is necessary for the conduct of proceedings before it and that failure to make such disclosure would be contrary to the public interest; [or]
d. disclosure may be necessary to conduct an investigation into the financial ability to pay of any person receiving services or his chargeable relatives pursuant to the provisions of R.S.30:1-12[.];
e. 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; or
f. disclosure may be necessary in connection with the review of a petition for relief from a federal firearms prohibition pursuant to P.L. c. (pending before the Legislature as this bill), except that these records shall not be disclosed to a third party or used for any purpose other than permitted in this subsection.
Nothing in this section shall preclude disclosure, upon proper inquiry, of information as to a patient's current medical condition to any relative or friend or to the patient's personal physician or attorney if it appears that the information is to be used directly or indirectly for the benefit of the patient.
Nothing in this section shall preclude the professional staff of a community agency under contract with the Division of Mental Health Services in the Department of Human Services, or of a screening service, short-term care or psychiatric facility as those facilities are defined in section 2 of P.L.1987, c.116 (C.30:4-27.2) from disclosing information that is relevant to a patient's current treatment to the staff of another such agency.
(cf: P.L.2009, c.183, s.4)
14. Section 3 of P.L.1953, c.268 (C.30:4-80.10) is amended to read as follows:
3. This act and P.L. , c. (C. et al.) (pending before the Legislature as this bill) shall not apply to any case in which the defendant was found not guilty of a crime because of insanity or from a determination that the defendant was incompetent to stand trial[, except for the purpose of applying to the court pursuant to the NICS Improvement Amendments Act of 2007, Pub. L. 110-180, for relief from a federal firearms disability to possess a firearm imposed under 18 U.S.C. ss. 922(d)(4) and (g)(4)].
(cf: P.L.2009, c.183, s.3)
15. This act shall take effect on the first day of the seventh month after enactment.
STATEMENT
This bill authorizes persons disqualified from purchasing a firearm under federal law due to a record of mental illness to petition the court for relief from this prohibition under certain circumstances.
Current federal law prohibits the sale or other disposal of any firearm or ammunition to any person knowing or having reasonable cause to believe that the person has been adjudicated as a mental defective or has been involuntarily committed to any mental institution. It is also unlawful for a person who has been adjudicated as a mental defective or involuntarily committed to a mental institution "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
Under the bill a person who has a mental health adjudication or has been involuntarily committed for a mental illness but discharged from the mental health facility or outpatient treatment provider as recovered, substantially improved, or in substantial remission, may petition the Superior Court for an order relieving the person from these federal prohibitions on purchasing or receiving a firearm.
To initiate the process, the petitioner is to provide the court with the following information on a standardized form: the petitioner's name, date of birth, current street address and address when the mental health adjudication was received or when the petitioner was involuntarily committed; date of the commitment and mental health facility or outpatient treatment provider; a statement as to whether the petitioner is currently receiving psychiatric care and the name and address of the provider; statements concerning whether the petitioner is currently charged with any offense or has been convicted of any offense, is currently serving a term of probation or parole, or is the subject of a restraining order; an opinion from a licensed psychiatrist as to whether the petitioner would, because of mental illness, be a risk to himself or others if permitted to possess a firearm; and any other relevant information required by the court. The petitioner is to consent to the release of records relating to the petition.
The court is required by the bill to schedule a hearing between 35 and 60 days from receipt of the petition. The petitioner has five days from when the court schedules the hearing to provide copies of the petition and supporting documents to the following persons: the county adjuster where the petitioner was committed; the medical director of the facility or provider where the petitioner was committed or the party who applied for the determination that the person receive a mental health adjudication; the prosecutor of the county where the petition was filed; and certain law enforcement officers depending on whether the petitioner is a resident of New Jersey. The petitioner may present evidence and witnesses at the hearing. The court is charged with reviewing the evidence and keeping a record of the proceeding.
Under the bill, the prosecutor of the county in which the petition is filed is responsible for representing the public safety interests of the State during the hearing. The prosecutor is to review the statements in the petition, notify the court of any facts that may constitute a bar to granting relief, and provide the court with the petitioner's criminal history. The bill also requires a State and federal criminal history record background check of the petitioner. A check could not be conducted unless the petitioner provides written consent and pays the cost of administering the check.
The court is to consider at the hearing the underlying circumstances that led to the federal firearms prohibition; the petitioner's history of mental illness and current recovery status; the petitioner's criminal history and restraining orders; the petitioner's reputation in the community; changes in the petitioner's condition or circumstances relevant to the relief sought; information provided by law enforcement officials regarding the accuracy of information provided by the petitioner or the potential risk to public safety in granting relief; and other relevant information. Relief is to be granted only if there is clear and convincing evidence that the petitioner is not likely to act in a manner dangerous to public safety and that it is in the interest of the public to remove the federal firearms prohibition. The bill specifies that the petitioner has the right to de novo review if relief is denied.
Under the bill, the court proceedings are to be closed to the public.
It is a crime of the third degree for a petitioner to knowingly make a false statement or knowingly provide false information in a petition for relief under the bill. Crimes of the third degree are punishable by imprisonment for three-to-five years, a fine of up to $15,000, or both.
The bill also clarifies that an expungement of a civil commitment record prior to the effective date of the bill relieves a federal firearms prohibition based on a New Jersey mental health adjudication submitted to the National Instant Criminal Background Check System (NICS) only if that relief was sought in the expungement petition and was granted by the court. An expungement of a civil commitment record ordered by the court subsequent to the effective date of the bill does not relieve a person
from a federal firearms prohibition based on a NICS check. A party
seeking relief from the federal firearms prohibition based on a New Jersey mental health adjudication submitted to NICS after the effective is to proceed under the provisions of the bill, rather than the civil commitment expungement statutes.
