ASSEMBLY, No. 4301

STATE OF NEW JERSEY

213th LEGISLATURE

 

INTRODUCED NOVEMBER 30, 2009

 


 

Sponsored by:

Assemblyman  GORDON M. JOHNSON

District 37 (Bergen)

Assemblywoman  L. GRACE SPENCER

District 29 (Essex and Union)

 

 

 

 

SYNOPSIS

     Brings State law into conformity with federal law concerning sharing of certain mental health information relating to the purchase and possession of firearms.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning compliance with the federal NICS Improvement Amendments Act of 2007, Pub. L. 110-180, and amending P.L.1953, c.268 and P.L.1965, c.59.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 1 of P.L.1953, c.268 (C.30:4-80.8) is amended to read as follows:

     1.    Any person who has been, or shall be, committed to any institution or facility providing mental health services, or has been determined to be a danger to himself, or determined to lack the mental capacity to contract or manage his own affairs by reason of mental illness, incompetency, condition, or disease, by order of any court or by voluntary determination or voluntary commitment[, to any institution or facility providing mental health services] and who was, or shall be, discharged from such institution or facility as recovered, or whose illness upon discharge, or subsequent [thereto] to discharge or determination, is substantially improved or in substantial remission, may apply to the court by which such commitment was made, or, if voluntarily determined to lack the mental capacity to contract or manage his own affairs by reason of mental illness, incompetency, condition, or disease or voluntarily committed, to the Superior Court by verified petition setting forth the facts and praying for the relief provided for in this act. 

(cf: P.L.1991, c.91, s.317)

 

     2.    Section 2 of P.L.1953, c.268 (C.30:4-80.9) is amended to read as follows:

     2.    Upon reading and filing such petition, the court shall by order fix a time,  not less than 10 nor more than 30 days thereafter, for the hearing of such  matter, a copy of which order shall be served by the petitioner upon the county [adjuster] counsel of the  county and upon the medical director of the institution or facility to which  such person was committed or upon the party or parties who applied for the determination that the person be found to be a danger to himself or determined to lack the mental capacity to contract or manage his own affairs by reason of mental illness, incompetency, condition, or disease, and at the time so appointed, or to which it may be  adjourned, the court shall hear [the matter and if no reason appears to the contrary] evidence as to:  the circumstances of why the commitment or determination was imposed upon the petitioner, the petitioner’s mental health record and criminal history, and the petitioner’s reputation in the community.  If the court finds that the applicant will not likely act in a manner dangerous to the public safety and finds that the grant of relief is not contrary to the public interest, the court shall grant such relief for which the petitioner has applied and, an order [shall be made] directing the clerk of the court to expunge such commitment from the records of the court.

(cf:  P.L.1976, c.108, s.2)

 

     3.    Section 3 of P.L.1953, c.268 (C.30:4-80.10) is amended to read as follows:

     3.    This act shall not apply to any case in which the commitment resulted from a determination that the defendant was not guilty of a crime[,] because of insanity or from a determination that [he] 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.1976, c.108, s.3)

 

     4.    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 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 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.

     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.1995, c.155, s.3) 

 

     5.    This act shall take effect immediately.

 

 

STATEMENT

 

     The purpose of this bill is to bring New Jersey law into conformance with changes to the Brady Handgun Violence Protection Act of 1993, Pub. 103-159 (Brady Act), which the federal government adopted in response to the Virginia Tech tragedy in April 2007.  

     The Virginia Tech shooter was able to purchase the firearms used in the shootings because information concerning his mental health history, which would have prohibited him from purchasing a firearm, had not been entered into the National Instant Criminal Background Check System (NICS).  To avoid similar tragedies in the future, the Brady Act was amended to improve the NICS database by enhancing the law’s requirements that federal departments and agencies provide relevant information to NICS and create grant incentives for the states to improve their information sharing with NICS concerning individuals prohibited from receiving and possessing firearms.  States which fail to comply are subject to penalties.

     While New Jersey complies with the federal law’s requirements concerning the reporting of criminal convictions and indictments, it does not have a comprehensive electronic system for identifying and reporting information to the federal government concerning individuals who have been adjudicated as mental defectives or committed to mental institutions.

     On June 22, 2009, the Administrative Office of the Courts applied for a federal grant to improve the recording, automation, and transmittal of State mental health adjudications.  The program design would provide this mental health information to both the New Jersey State Police and NICS.

     New Jersey’s grant application was denied by the U.S. Attorney General on October 14, 2009 because State law:  (1) does not adequately afford individuals adjudicated as mental defectives the right to apply for an expungement; (2) does not require State courts to hear any of the evidence expressly required by federal law in such expungement cases; (3) contains directive language and phraseology concerning the factors to be considered by the court in reviewing petitions for expungement that are too vague to comply with the new federal law; and (4) does not grant the federal government access to State mental health records.

     The provisions of this bill amend the appropriate sections of State law to address the concerns raised by the U.S Attorney General.  With their adoption, New Jersey will become compliant with the provisions of the NICS Improvement Act of 2007 and be qualified to receive federal grant moneys to assist in the implementation of those changes.