The DOJ and Bureau of Firearms (BOF) developed a Mental Health Reporting System (MHRS) for all qualifying mental health prohibitors. The new MHRS was made available for hospital facilities to begin submitting electronic reports on June 11, 2012. Since MHRS is a state level reporting database that integrates it entries into the state's larger Automated Firearms System. If it applies; logically, an entry in to the MHRS also triggers an entry into CA's armed and prohibited person system (APPS). APPS doesnt happen unless the person had a firearm in CFARS under their name before the prohibiting event.
When the Fix NICS Act passed in 2017, it raised a small question of integrating MHRS records with NICS. Since the MHRS is a state database and the NICS is comprised of federal databases (III, NCIC, NICS index); not state, how diligent is CA in getting their MHRS records into NICS? 5150s are state prohibitors but 5250 certification review hearings are federally prohibiting events under 18 U.S.C 922 (g)(4) and would per Fix NICS Act should trigger a denial in another state if a CA resident moved. Because they are federal prohibitors and the MHRS is a state database outside of the NICS database the FBI checks, it is the mandate under the Fix NICS Act that the CA DOJ or BOF be diligent in transfering applicable state MHRS records to the NICS.
When the Fix NICS Act passed in 2017, it raised a small question of integrating MHRS records with NICS. Since the MHRS is a state database and the NICS is comprised of federal databases (III, NCIC, NICS index); not state, how diligent is CA in getting their MHRS records into NICS? 5150s are state prohibitors but 5250 certification review hearings are federally prohibiting events under 18 U.S.C 922 (g)(4) and would per Fix NICS Act should trigger a denial in another state if a CA resident moved. Because they are federal prohibitors and the MHRS is a state database outside of the NICS database the FBI checks, it is the mandate under the Fix NICS Act that the CA DOJ or BOF be diligent in transfering applicable state MHRS records to the NICS.
Notice the box that says date of admission or certification. If the facility entering the information were to do such correctly, they should enter each hold serially and bifurcate the 5250 certification notice and the judgement from the certification review hearing as two separate events. If the person entering the information enters the start of the 14 day hold under both admission and certification and does not enter the certification review hearing judgement as its own qualifier, then that contradicts the finding in Stokes v. Dept of Justice.
When arguing that the date of the admission matters, counsel must establish that ATF has established that it intends for adjudicated mentally defective or committed to a mental institution to mean a formal adjudication by a lawful authority and Stokes clarified that entails due process.
The 5250 notice of certification for intensive treatment triggers the state's hold but it is not until the certification review hearing, that the federal prohibitor should be triggered. When read within its ordinary sense, the word "or" marks an alternative indicating that the parts of the sentence which it connects must be considered separately. People v. Frieberg, 147 Ill.2d 326, 168 Ill. Dec. 108, 589 N.E.2d 508 (1992). If strictly reading this, then admission and certification and certification review hearing should all be different criteria entered at the right times.
Given the difficulty of challenge a NICS entry to the NICS denial appeal board, it is key to enter the events at the right time and when the disposition comports with federal precedents. Otherwise someone who may have been admitted under a 5250 certification for intensive treatment but won their certification review hearing or their writ of habeas corpus might be wrongfully denied and going through federal court is a costly time consuming endeavour that takes years.
When arguing that the date of the admission matters, counsel must establish that ATF has established that it intends for adjudicated mentally defective or committed to a mental institution to mean a formal adjudication by a lawful authority and Stokes clarified that entails due process.
The 5250 notice of certification for intensive treatment triggers the state's hold but it is not until the certification review hearing, that the federal prohibitor should be triggered. When read within its ordinary sense, the word "or" marks an alternative indicating that the parts of the sentence which it connects must be considered separately. People v. Frieberg, 147 Ill.2d 326, 168 Ill. Dec. 108, 589 N.E.2d 508 (1992). If strictly reading this, then admission and certification and certification review hearing should all be different criteria entered at the right times.
Given the difficulty of challenge a NICS entry to the NICS denial appeal board, it is key to enter the events at the right time and when the disposition comports with federal precedents. Otherwise someone who may have been admitted under a 5250 certification for intensive treatment but won their certification review hearing or their writ of habeas corpus might be wrongfully denied and going through federal court is a costly time consuming endeavour that takes years.
Because they say that a NICS deny or delay can occur because there are records that match an entry with a similar name or descriptor; they suggest that people enter all of the information on the 4473 including SSN. On the MHRS it does include slots for specific identifiers but still mistakes can occur, and delays do still happen with the MHRS being properly populated.
This system does beg an interesting question of when the notice of certification is sent to the MHRS and when the outcome of the certification review hearing is actually sent and inputted to NICS.
Of note:
Welf & Inst Code section 8103 subd (a) (1) states that
A person who has been adjudicated by a court of any state to be a danger to others as a result of a mental illness, shall not purchase or receive or have possession, custody, or control of a firearm.
(2) The court shall notify the DOJ of a court order finding the individual to be a danger to others or self as soon as possible, but not later than one court day after issuing the order. The court shall also notify the DOJ of any certificate issued as described in paragraph (1) as soon as possible, but not later than one court day after issuing the certificate.
The question that arises is when do these records get sent to the NICS and when do they get sent to the MHRS? Timing matters because under state law, a notice of certification for intensive treatment is triggered at the onset of the 5250 hold, but it is unclear if the notice of certification for intensive treatment (given to patient on day 1 of their 14 day hold) sent to the court/DOJ who then sends it for entry into the NICS indices to trigger the 18 U.S.C 922 (g)(4) prohibitor.
At the bottom of DHCS 1808 form "Notice of certification for intensive treatment pursuant to 5250" it reads "The court has been notified of this certification on this day _____". This supports the notion that on the first day of a 14 day hold (when the patient is served with this form), it in conformity with the code must be sent to MHRS. Now the question of whether the superior court when notified of this certification for intensive treatment; read NOT certification review hearing, forwards the certification for intensive treatment onto to be entered into the NICS indices. This question matters as per Mai v. United States , 952 F.3d 1106 (9th Cir. 2020) and Stokes v. U.S. Dep’t of Justice, 551 F. Supp. 3d 993, 998 (N.D. Cal. 2021) the person certified for intensive treatment should not qualify for a lifetime federal prohibitor as they have not yet received due process as the certification review hearing has not yet occurred and even then Stokes found that certification review hearings did not comport with Mai and therefore are not eligible for include in the NICS.
It also matters in stopping ineligible records from coming into the NICS because California has created many roadblocks for judicial review of questionable NICS records. Because this is a technical error, it could possibly be challenged by following up with the NICS appeals division; however, since this likely is a routine practice among all counties, filing in federal court is the only avenue of relief for plaintiffs.
To clarify, the issue at hand is the timing of sending the [day one] notice of certification for intensive treatment to the DOJ for entry into the NICS indices without patient having had the certification review hearing. Submission of the notice of certification for intensive treatment (DHCS 1808 form) to CA's MHRS is not being challenged as that is lawful under state law. The ambiguity between Welf & Inst Code 8103, Mai, and Stokes remains an unsolved likely ongoing constitutional violation.
Of note:
Welf & Inst Code section 8103 subd (a) (1) states that
A person who has been adjudicated by a court of any state to be a danger to others as a result of a mental illness, shall not purchase or receive or have possession, custody, or control of a firearm.
(2) The court shall notify the DOJ of a court order finding the individual to be a danger to others or self as soon as possible, but not later than one court day after issuing the order. The court shall also notify the DOJ of any certificate issued as described in paragraph (1) as soon as possible, but not later than one court day after issuing the certificate.
The question that arises is when do these records get sent to the NICS and when do they get sent to the MHRS? Timing matters because under state law, a notice of certification for intensive treatment is triggered at the onset of the 5250 hold, but it is unclear if the notice of certification for intensive treatment (given to patient on day 1 of their 14 day hold) sent to the court/DOJ who then sends it for entry into the NICS indices to trigger the 18 U.S.C 922 (g)(4) prohibitor.
At the bottom of DHCS 1808 form "Notice of certification for intensive treatment pursuant to 5250" it reads "The court has been notified of this certification on this day _____". This supports the notion that on the first day of a 14 day hold (when the patient is served with this form), it in conformity with the code must be sent to MHRS. Now the question of whether the superior court when notified of this certification for intensive treatment; read NOT certification review hearing, forwards the certification for intensive treatment onto to be entered into the NICS indices. This question matters as per Mai v. United States , 952 F.3d 1106 (9th Cir. 2020) and Stokes v. U.S. Dep’t of Justice, 551 F. Supp. 3d 993, 998 (N.D. Cal. 2021) the person certified for intensive treatment should not qualify for a lifetime federal prohibitor as they have not yet received due process as the certification review hearing has not yet occurred and even then Stokes found that certification review hearings did not comport with Mai and therefore are not eligible for include in the NICS.
It also matters in stopping ineligible records from coming into the NICS because California has created many roadblocks for judicial review of questionable NICS records. Because this is a technical error, it could possibly be challenged by following up with the NICS appeals division; however, since this likely is a routine practice among all counties, filing in federal court is the only avenue of relief for plaintiffs.
To clarify, the issue at hand is the timing of sending the [day one] notice of certification for intensive treatment to the DOJ for entry into the NICS indices without patient having had the certification review hearing. Submission of the notice of certification for intensive treatment (DHCS 1808 form) to CA's MHRS is not being challenged as that is lawful under state law. The ambiguity between Welf & Inst Code 8103, Mai, and Stokes remains an unsolved likely ongoing constitutional violation.
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A record qualifies for entry in the NICS Index if it contains, at a minimum, 1 a NICS record identifier; an agency record identifier; the associated data source; the prohibited category; the originating agency identifier; name and sex of the person; and at least one numeric identifier for the subject (date of birth, social security number).
Federal law prohibits these records from containing any information on the diagnosis or treatment of the individual.
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