New York Codes, Rules and Regulations › Title 14 - DEPARTMENT OF MENTAL HYGIENE › Chapter XIII - Office of Mental Health › Part 543 - Certificate Of Relief From Disabilities Related To Firearms Possession › Section 543.1 - Background and intent

Current through Register Vol. 46, No. 28, July 10, 2024
(a) The Federal
				Brady Handgun Violence Prevention Act of 1993 (Brady Act) prohibits any person
				from selling or otherwise disposing of any firearm or ammunition to any person
				who has been involuntarily "committed to a mental institution" (18
				U.S.C. section 922 [d][4]) and further
				prohibits any person who has been involuntarily "committed to a mental
				institution" from shipping or transporting in interstate or foreign commerce,
				or possessing in or affecting commerce, any firearm or ammunition; or receiving
				any firearm or ammunition which has been shipped or transported in interstate
				or foreign commerce (18
				U.S.C. section 922 [g][4]).
(b) Under the Federal NICS Improvement
				Amendments Act of 2007, Public Law 110-180, section 105, the Brady Act was
				amended to establish the National Instant Criminal Background Check System
				(NICS). Upon being contacted by a Federal firearm licensee prior to
				transferring a firearm to an unlicensed person, NICS will provide information
				on whether a person is prohibited from receiving or possessing a firearm under
				State or Federal law. NICS contains records concerning certain events, such as
				criminal convictions and mental health adjudications and findings that may
				disqualify a person from purchasing a firearm. The 2007 amendments also require
				the establishment of a "certificate of relief from disabilities" process to
				permit a person who has been or may be disqualified from possessing a firearm
				pursuant to
				18
				U.S.C. section 922(d)(4) and
				(g)(4) to petition for relief from that
				disability.
(c) Section
				7.09 of the Mental Hygiene Law authorizes
				the Office of Mental Health to collect, retain, modify or transmit data or
				records for inclusion in the NICS system for the purpose of responding to NICS
				queries regarding attempts to purchase or otherwise take possession of
				firearms, as defined in
				18
				U.S.C. 921(a)(3). The
				records which the Office of Mental Health is authorized by law to collect,
				retain, modify, or transmit are expressly limited to persons who have been
				involuntarily committed pursuant to article 9 or 10 of the Mental Hygiene Law,
				article 730 or section 330.20  of the Criminal Procedure Law,
				section 402 or 508  of the Correction Law or section 322.2 or 353.4  of the
				Family Court Act. Mental Hygiene Law section 7.09 also requires the office to
				promulgate regulations establishing a "certificate of relief from disabilities"
				process for those persons whose records were provided to the Division of
				Criminal Justice Services or the Federal Bureau of Investigation by the office
				pursuant to Mental Hygiene Law section 7.09, and who have been or may be
				disqualified from possessing a firearm pursuant to
				18
				U.S.C. section 922(d)(4) and
				(g)(4).
(d) The purpose of these regulations is to
				establish the required administrative "certificate of relief from disabilities"
				process for persons whose records were submitted to the NICS system by the
				Office of Mental Health in accordance with section 7.09  of the Mental Hygiene Law. (The Office
				of Mental Health has the authority under section 7.09  of the Mental Hygiene Law to transmit
				the records either directly to the NICS system or through the Division of
				Criminal Justice Services.) Such relief will be based on a determination of
				whether the person's record and reputation are such that he/she will not be
				likely to act in a manner dangerous to public safety and where granting the
				relief would not be contrary to the public interest.