34 U.s.c. § 40911 (c)(1)(a) is not a loophole around intermediate scrutiny and the state relief from disabilities program

Important distinction for those who are prohibited persons under § 922 (g)(4).

The NICS Improvement Act of 2007 has two clauses for distinguishing what the origin of civil commitments that may be subject to exclusion from the NICS. Most mental health commitments are subject to the state relief from disabilities program as described in the NICS Improvement Act of 2007. Very few fall commitments qualify for the narrow clause in NIAA § 101 (c)(1)(a)/34 U.S.C. section 40911 (c)(1)(A) which exempts federal agency's commitment orders from the NICS. Some people have attempted to bypass the state relief from disabilities program by asserting that they fall under section 101 (c)(1), but their reliance is misplaced as section 40911 (c)(1)(a) entails a small class of persons, the scheme of most mental health commitment procedures, and other overwhelming state interests bar a successful challenge to section 40911.  

There have been several cases* where petitioners alleged that their mental health records were inappropriately submitted to the NICS citing 34 U.S.C. § 40911 (c)(1)(A) which bars submission of disqualifying mental health records from a federal agency. Petitioners allege that their superior court of their state or their state’s DOJ fall under the same category as a federal agency.
 
Section (A) reads:
 
 
No department or agency of the Federal Government may provide to the Attorney General any record of an adjudication related to the mental health of a person or any commitment of a person to a mental institution if
 
(A) the adjudication or commitment, respectively, has been set aside or expunged, or the person has otherwise been fully released or discharged from all mandatory treatment, supervision, or monitoring;
 
 
Petitioners allege that the code was interpreted to include state agencies or courts as having the same protections as federal agencies. However, in consolidating these cases, the petitioners' error was the same. First, the origin of the NICS mental health entry is a state one not. federal one. Even if the hospital records come in through the FBI, not the hospital itself, or that if a hospital transmitted a disqualifying record to the state's DOJ, the DOJ’s entering that information to the NICS is that of state official not a federal. Petitioner alleged that the DOJ was no different than a federal agency issuing a commitment order. However, the CA DOJ oversees the CA justice system and does not have jurisdiction over other states. 
 
 
 
The court in one of the opinions stated that courts generally resist reading words or elements into a statute that do not appear on its face. “Where Congress knows how to say something but chooses not to, its silence is controlling”. This means that if Congress wrote federal agencies but did not clarify whether that was to include state agencies, the silence vis a vis state agencies controls and unless Congress clarifies to include state agencies, the original designation of federal agencies shall remain the only body that falls under the purview of section 40911 (c)(1)(a). 


We now move to the issue of why petitioners may occasionally attempt to try this line of reasoning instead of going through the state relief from disabilities program.
 
Outside of comity issues, there is unspoken speculation that this provision barring state courts and agencies may lie in the timing of involuntary holds. Almost all defendants, who are adjudicated as mentally deficient and committed to a mental institution are done so by a state court or state agency are subject to narrow timeframes. The code uses the words "discharged" and "fully released"  and from all "treatment" and "supervision". These words characterize all involuntary hospitalizations be it long term holds and short holds. Persons who are committed involuntarily are not done so via formal commitment hearings with their attendant indicias of due process. Most involuntary holds are ordered for short periods of time and are not long term treatment orders (such as the LPS conservatorship) that demand more due process protections. For short term holds, they are held on being a danger to self and then generally released after a 2 or 3 week hold with no conditions of release or continued treatment. Petitioners reason that this unconditional release qualifies as "fully released or discharged" and thus the disqualifying mental health hospitalization stay would not qualify for submission to the NICS if the district court decided in their favour that state agencies or courts should be included within the meaning of section 40911. 



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However, these court decisions are unlikely to be overruled as there is a strong compelling state interest in keeping firearms out of prohibited persons' possession and by bypassing the federal relief from disabilities program, Everytown and Giffords would assert that it would be too easy to return firearms to the mentally ill. If superior courts or judicial officers (as in the case of cert review hearings) were treated not as state agencies or courts but as federal agencies, then there would appear to be no need for the relief from disabilities program as section 40911 directs that they were to follow the same mandates as the federal agencies. The concept behind the relief from disabilities program is to provide a legal avenue for the mentally ill to demonstrate their return to mental fitness and to prove they are no longer a danger to self. This mandate exists because under Heller the mentally ill are not afforded strict scrutiny and Bruen's new framework relying on documented historical tradition of barring the mentally ill does not hold water for 2A challenges. Furthermore, by bypassing the relief from disabilities program, including state agencies under section 40911 (c)(1)(a) could possibly been seen as bypassing the intermediate scrutiny as laid out in Heller and unresolved by Bruen.





Some historical context behind the relief from disabilities program:
Originally, the McClure-Volkmer bill passed in 1986 extended the relief from disabilities program to others beyond felons. It extended relief from disabilities to those who had been convicted of crimes involving a firearm, involuntarily committed to a mental institution or adjudicated incompetent, or other violators of the Gun Control Act. However, after lobbying from several gun control groups including the Violence Policy Center who pulled randomly selected felons' criminal backgrounds and created the nexus to when their relief from disabilities was granted, new amendments were proposed to strip federal funding for the program. The Lautenberg amendment in an attachment to the Treasury Department Appropriations Act, 1993 (Pub L No 102-393, 106 Stat 1729, 1732 (1992)), included the provision that amended the relief from disabilities program so that any person prohibited from possessing firearms could continue to seek relief BUT no federal funding could be expended on the program. They reasoned that the money was better spent on other programs and that section 925 (c) was meant to permanently prohibit felons from possessing a firearm. Hence in the NIAA of 2008, each state was allowed to draft its own relief from disabilities program and only qualified for removal from the federal NICS database if the state court made a finding that 1) said person would not be likely to act in a manner dangerous to public safety and that 2) the granting of the relief would not be contrary to the public interest. If a state's program did not render such a finding, then the state prohibition may be lifted but the federal ban remained leaving petitioners with no means of challenging the federal ban given the barrier arising from 11th amendment claims and abstention. 

Given this history it is understandable to see why petitioners from states that do not have a qualifying relief from disabilities program would attempt this argument for holding state and federal courts to the same mandates.

*Bonelli v. United States (D. Ariz., Mar. 7, 2018, No. CR-13-01551-PHX-DJH) 2018 WL 10195959, report and recommendation adopted (D. Ariz., Nov. 5, 2019, No. CR-13-01551-PHX-DJH) 2019 WL 5704364
Franklin v. Lynch (W.D. Pa., Nov. 21, 2016, No. 3:16-CV-36) 2016 WL 6879265
Keyes v. Lynch (M.D. Pa. 2016) 195 F.Supp.3d 702