Senate Bill No. 464

(By Senators Palumbo, Wills and Kessler (Acting President))

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[Introduced February 8, 2011; referred to the Committee on the Judiciary.]

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A Bill to amend and reenact §61-7A-2 and §61-7A-5 of the Code of West Virginia, 1931, as amended, all relating to the procedure for petitioning to regain the right to possess firearms to comply with the minimum criteria to establish qualifying mental health relief from firearms disabilities under the NICS Improvement Act of 2007 generally.

Be it enacted by the Legislature of West Virginia:

    That §61-7A-2 and §61-7A-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 7A. STATE MENTAL HEALTH REGISTRY; REPORTING OF PERSONS’ PROSCRIBED FROM FIREARM POSSESSION DUE TO MENTAL CONDITION TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM; LEGISLATIVE FINDINGS; DEFINITIONS; REPORTING REQUIREMENTS; REINSTATEMENT OF RIGHTS PROCEDURES.

§61-7A-2. Definitions.

    As used in this article and as the terms are deemed to mean in 18 U.S.C. §922(g) and section seven, article seven of this chapter as each exists as of January 31, 2008:

    (1) “A person adjudicated as a mental defective” means a person who has been determined by a duly authorized court, tribunal, board or other entity to be mentally ill to the point where he or she has been found to be incompetent to stand trial due to mental illness or insanity, has been found not guilty in a criminal proceeding by reason of mental illness or insanity or has been determined to be unable to handle his or her own affairs due to mental illness or insanity.

    (2) “Committed to a mental institution” means to have been involuntarily committed for treatment pursuant to the provisions of chapter twenty-seven of this code by virtue of a final order of commitment.

     (3) “Mental institution” means any facility or part of a facility used for the treatment of persons committed for treatment of mental illness or addiction.

§61-7A-5. Petition to regain right to possess firearms.

    (a) Any person who is prohibited from possessing a firearm pursuant to the provisions of section seven, article seven of this chapter or by provisions of federal law by virtue solely of having previously been adjudicated to be mentally defective or to having a prior involuntary commitment to a mental institution pursuant to chapter twenty-seven of this code may petition the circuit court of the county of his or her residence to regain the ability to lawfully possess a firearm. Petitioners prohibited from possession of firearms due to a mental health disability, must include in the petition for relief from disability: (1) A listing of facilities and location addresses of all prior mental health treatment received by petitioner; (2) an authorization, signed by the petitioner, for release of mental health records to the prosecuting attorney of the county; and (3) a verified certificate of mental health examination by a licensed psychologist or psychiatrist occurring within thirty days prior to filing of the petition which supports that the petitioner is competent and not likely to act in a manner dangerous to public safety. The court may only consider petitions for relief due to mental health adjudications or commitments that occurred in this state, and only give the relief specifically requested in the petition. In determining whether to grant the petition, the court shall receive and consider at a minimum evidence: (1) Concerning the circumstances regarding the firearms disabilities imposed by 18 U.S.C. §922(g)(4); (2) the petitioner’s record which must include the petitioner’s mental health and criminal history records; and (3) the petitioner’s reputation developed through character witness statements, testimony, or other character evidence. If the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibilities concomitant with the possession of a firearm, will not be likely to act in a manner dangerous to public safety, and that granting the relief will not be contrary to public interest, the court may enter an order allowing the petitioner to possess a firearm. If the order denies petitioner’s ability to possess a firearm, the petitioner may appeal the denial, which appeal is to include the record of the circuit court rendering the decision.

    (b) All proceedings for relief to regain firearm or ammunition rights shall be reported or recorded and maintained for review.

    (c) The prosecuting attorney or one of his or her assistants shall represent the state in all proceedings for relief to regain firearm rights and provide the court the petitioner’s criminal history records.

    (d) The written petition, certificate, mental health or substance abuse treatment records and any papers or documents containing substance abuse or mental health information of the petitioner, filed with the circuit court, are confidential. These documents may not be open to inspection by any person other than the prosecuting attorney or one of his or her assistants only for purposes of representing the state in and during these proceedings and by the petitioner and his or her counsel. No other person may inspect these documents, except upon authorization of the petitioner or his or her legal representative or by order of the court, and these records may not be published except upon the authorization of the petitioner or his or her legal representative.(b) (e) The circuit clerk of each county shall provide the Superintendent of the West Virginia State Police, or his or her designee, and the Administrator of the West Virginia Supreme Court of Appeals, or his or her designee, with a certified copy of any order entered pursuant to the provisions of this section which removes a petitioner’s prohibition to possess firearms. If the order restores the petitioner's ability to possess a firearm, petitioner's name shall be promptly removed from the central state mental health registry and the superintendent or administrator shall forthwith inform the Federal Bureau of Investigation, the United States Attorney General, or other federal entity operating the National Instant Criminal Background Check System of the court action.

    NOTE: The purpose of this bill is to amend the procedure for petitioning to regain the right to possess firearms to comply with the minimum criteria to establish qualifying mental health relief from firearms disabilities under the NICS Improvement Act of 2007 (NIAA) Public Law 110-180, Section 105, enacted on January 8, 2008, to allow the removal of individuals from the federal NICS Index who have been adjudicated in West Virginia to regain their right to possess firearms.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.