New York Codes, Rules and Regulations › Title 14 - DEPARTMENT OF MENTAL HYGIENE › Chapter XIV - Office for People With Developmental Disabilities › Part 643 - Certificate of Relief from Disabilities (Prohibitions) Related to Firearms Possession › Section 643.1 - 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), as amended, among
				other provisions, 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 (18
				U.S.C. section 922
et seq.
)
				was amended to mandate that states must report certain persons disqualified
				from receiving or possessing firearms to 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 on both the Federal and State levels 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
				13.09(f) of the Mental
				Hygiene Law authorizes the Office for People With Developmental Disabilities
				(OPWDD), in cooperation with the NYS Unified Court System and other State
				agencies, to collect, retain, modify or transmit data or records for inclusion
				in NICS 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 OPWDD is authorized by law to collect, retain, modify, or
				transmit, include information identifying persons who have been involuntarily
				committed to an OPWDD facility pursuant to article 15 of the Mental Hygiene
				Law, article 730 or section 330.20  of the Criminal Procedure Law, or
				section 322.2 or 353.4  of the Family Court Act. In accordance with the
				above-referenced Federal law, Mental Hygiene Law, section 13.09 (f)  also requires
				OPWDD 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
				OPWDD pursuant to Mental Hygiene Law, section
				13.09(f), and who have
				been or may be disqualified from purchasing and/or 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 NICS by OPWDD in accordance
				with section
				13.09(f) of the Mental
				Hygiene Law. 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.