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20LSO-0318
2020
STATE OF WYOMING
20LSO-0318
Numbered
2.0
HOUSE BILL NO. HB0059
Reporting of and relief from firearms disqualification.
Sponsored by: Representative(s) Pownall, Burlingame, Kirkbride and Stith and Senator(s) Von Flatern
A BILL
for
AN ACT relating to public safety; providing that certain mental health information that evidences federal firearms disqualification may be reported as specified; creating a procedure for persons disqualified for mental health reasons to challenge their disqualification; requiring the division of criminal investigation to collect and report specified mental health information; requiring state and local agencies to report specified mental health information and designate persons to receive notice; providing for limited liability as specified; and providing for an effective date.
Be It Enacted by the Legislature of the State of Wyoming:
Section 1
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W.S. 1
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23
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108 is created to read:
1
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23
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108.
Right of action; mental health prohibitor information
.
(a)
As used in this section, "mental health prohibitor information" means as defined by W.S. 9
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1
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611(b)(iv).
(b)
A person who is prohibited from purchasing and possessing firearms under 18 U.S.C. § 922(d)(4) and (g)(4) because of a commitment, finding or adjudication that occurred in this state may petition the court to remove, pursuant to Section 105(a) of P.L. 110
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180, the disabilities imposed under 18 U.S.C. § 922(d)(4) and (g)(4).
(c)
The petition shall be filed in the court in which the commitment, finding or adjudication occurred. Copies of the petition shall be served on the office of the district attorney who represented the state in the underlying case,
the division of criminal investigation and the office of the district attorney in the petitioner's current county of residence.
(d)
The petition shall state with specificity:
(i)
The commitment, adjudication or other finding that subjects the petitioner to the disabilities imposed under 18 U.S.C. § 922(d)(4) and (g)(4);
(ii)
The circumstances surrounding the petitioner's commitment, adjudication or other finding;
(iii)
Changes in the petitioner's condition and other circumstances relevant to the relief sought;
(iv)
The petitioner's reputation as it relates to the relief sought;
(v)
The petitioner's mental health and criminal history.
(e)
The court upon receipt of the petition shall schedule a hearing after proof of service to all parties required under subsection (c) of this section. The court shall provide notice of the hearing to the petitioner and the office of the district attorney who represented the state in the underlying case and all other parties served with the petition.
(f)
Upon service of the petition, the division of criminal investigation shall immediately deliver a copy of the petition to all entities that supplied the mental health prohibitor information at issue in the petition to the division pursuant to W.S. 9
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1
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624(c) by delivering a copy of the petition to the person designated to receive notice under W.S. 9
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1
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624(h).
(g)
The burden is on the petitioner to establish by a preponderance of the evidence that the circumstances regarding the disabilities imposed under 18 U.S.C. § 922(d)(4) and (g)(4) and the petitioner's record and reputation are such that the petitioner will not be likely to act in a manner dangerous to public safety and that it
is not contrary to the public interest to grant the petition and remove the disabilities. The district attorney shall present any admissible, relevant information to the contrary. For the purposes specified in this subsection, the district attorney may access and use any and all admissible mental health records, juvenile records, and criminal history of the petitioner wherever maintained. The applicant shall sign a release for the district attorney to receive any mental health records of the applicant.
(h)
The hearing on the petition and the court file shall be closed to the public.
(j)
In determining the petition, the court shall consider the circumstances regarding the firearm disabilities from which relief is sought, the petitioner's mental health and criminal history, any properly admitted expert testimony, the petitioner's reputation, developed at a minimum through character witness statements, testimony, or other character evidence, and any changes in the petitioner's condition or circumstances since the original
commitment, adjudication or finding relevant to the relief sought.
(k)
The court shall grant the petition for relief if it finds by a preponderance of the evidence that the petitioner is not likely to act in a manner dangerous to public safety and that granting of the relief would not be contrary to the public interest.
(m)
When the court issues an order granting a petition under this section, the clerk of court shall immediately forward a copy of the order to the division of criminal investigation, which shall in turn immediately forward a copy to the federal bureau of investigation, or its successor agency, for updating of the national instant criminal background check system.
(n)
If a petition is granted under this section, the commitment, adjudication or finding for which relief is granted shall, pursuant to Section 105(a) of P.L. 110
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180, be deemed not to have occurred for purposes of 18 U.S.C. § 922(d)(4) and (g)(4) and the petitioner's firearms rights,
including the right to receive or possess a firearm and ammunition if not otherwise prohibited by state or federal law, the right to be eligible to carry a firearm pursuant to a permit to carry a concealed firearm, where it is otherwise permitted by state law, and the right to carry a firearm as otherwise permitted by law, are completely and fully restored.
(o)
The petitioner may appeal a denial of a petition and the review on appeal shall be de novo.
Section 2.
W.S. 9
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1
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611(b) by creating a new paragraph (iv) and by renumbering (iv) as (v), 9
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1
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624(a) by creating a new paragraph (v) and by creating new subsections (c) through (h), 25
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10
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110 by creating a new subsection (p), 25
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10
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121 and 25
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10
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122(a) by creating a new paragraph (v) are amended to read:
9
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1
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611.
Division of criminal investigation; created; definitions; director; appointment; qualifications.
(b)
As used in this act:
(iv)
"Mental health prohibitor information" means documentation evidencing an involuntary commitment to a mental institution under W.S. 25
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10
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110, a finding of incompetence to stand trial, a verdict of not guilty by reason of mental illness or deficiency and an adjudication of having a mental illness that presents a danger to self or others under W.S. 25
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10
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110;
(iv)
(v)
"This act" means W.S. 9
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1
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611 through 9
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1
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627.
9
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1
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624.
Division of criminal investigation; uniform procedures and forms for collecting and disseminating identification data; collection and dissemination of mental health prohibitor information; agencies to cooperate
.
(a)
The division shall:
(v)
Provide a system for collecting and reporting mental health prohibitor information to the federal bureau of investigation for use with the national
instant criminal background check system to the extent necessary to allow the federal bureau of investigation to collect and maintain a list of persons who are prohibited by federal law from engaging in the possession, sale or transfer of firearms.
(c)
A court that orders a commitment, finding or adjudication that results in an involuntary commitment to a mental institution under W.S. 25
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10
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110, a finding of incompetence to stand trial, a verdict of not guilty by reason of mental illness or deficiency or an adjudication of having a mental illness that presents a danger to self or others under W.S. 25
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10
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110 shall for the purposes of this section enter a separate summary order in a format required by the division that includes the person's name and nonclinical identifying information, the person's social security number and date of birth, together with a summary statement of the order that shall not include any underlying diagnoses or treatment detail not used by the federal bureau of investigation, or its successor agency, for the national instant criminal background check system.
The clerk of court shall forward a copy of the summary order to the division.
(d)
Upon written request by a person whose information has been disclosed or that person's authorized representative, the division shall identify to the requestor or his authorized representative all mental health prohibitor information submitted to the federal bureau of investigation about the requestor.
(e)
All information collected by the division under paragraph (a)(v) of this section shall be confidential information and, except as otherwise provided by this section or other state law, shall not constitute a public record and shall not be disseminated.
(f)
The division shall establish by rule a procedure to grant a petitioning individual or his authorized representative the ability to obtain, inspect and correct mental health prohibitor information collected by the division and for the transmission of the corrected information to the federal bureau of investigation when any
person submits to the division a judicial order or other proof which establishes that a record previously submitted to the federal bureau of investigation is not correct, that a person is no longer subject to a mental health prohibitor or that a person has otherwise been granted relief from a mental health prohibitor. The rules shall include provisions for the transmission of the correction or removal of any mental health prohibitor information within ten (10) days of receiving an order issued pursuant to W.S. 1
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23
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108.
(g)
A person authorized by this section and by W.S. 25
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10
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122(a)(v) to disseminate mental health prohibitor information, including information which indicates that a person is not subject to a mental health prohibitor, is not civilly or criminally liable for contributing or for disseminating the information to authorized persons.
(h)
All agencies, departments and subdivisions of the state and all counties, municipalities and political subdivisions thereof, including all courts and all district and county attorneys, to the extent they provide mental
health prohibitor information to the division, shall designate to the division a person who shall be responsible for receiving notice that a petition has been filed under W.S. 1
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23
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108.
25
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10
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110.
Involuntary hospitalization proceedings.
(p)
After ordering a person to be involuntarily hospitalized under this section, the clerk of court shall forward to the division of criminal investigation the information required in W.S. 9
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1
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624(c).
25
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10
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121.
Admission not to create presumption as to competency nor ground for guardianship
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Admission to a hospital under this act shall not create any presumption with respect to the patient's mental or legal competency to exercise civil, contractual or other rights for which a legal standard of competency exists. Admission to a hospital under this act is not sufficient cause for guardianship of the person or estate of any patient.
Nothing in this section shall prevent the submission and
disclosure of mental health prohibitor information as required by W.S. 9
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1
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624 or the use of mental health prohibitor information as provided in W.S. 1
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23
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108.
25
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10
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122.
Records to be kept confidential; exceptions.
(a)
Records and reports made under this act which directly or indirectly identify a patient, a former patient or an individual for whom an application for directed outpatient commitment or involuntary hospitalization has been filed, shall be confidential and shall not be disclosed by any person unless:
(v)
The disclosure is necessary for purposes of reporting to the national instant criminal background check system the identity of a person who is prohibited from possessing, selling or transferring a firearm under 18 U.S.C. § 922(d)(4) and (g)(4) provided:
(A)
The disclosure is made by the clerk of district court that makes the commitment or adjudication
that causes an individual to become a prohibited person under 18 U.S.C. § 922(d)(4) and (g)(4);
(B)
The disclosure is made to the division of criminal investigation as provided in W.S. 9
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1
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624(c) or directly to the national criminal instant background check system;
(C)
The disclosure is made by the division of criminal investigation to the federal bureau of investigation, or its successor agency, to update the national criminal instant background check system;
(D)
The disclosure is limited to information necessary to identify the prohibited person and does not disclose diagnostic or clinical information.
Section 3
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This act is effective July 1, 2020
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(END)
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HB0059