SB 0376

This bill requires a mental health records check prior to the sale or transfer of a firearm.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Mental Health Records Checks. Amend RSA by inserting after chapter 159-D the following new chapter:

159-E:1 Possession or Transfer of Firearm. No person who has been found not competent to stand trial pursuant to RSA 171-B or RSA 135-C:17-a due to mental disease or defect, or who has been involuntarily committed to a community health program in this state pursuant to RSA 135-C:27-33 or RSA 135-C:34-54, shall purchase or receive, or attempt to purchase or receive, or have in his or her possession, custody, or control any firearm unless the court, upon release from treatment or at a later date, has issued such person a certificate stating that the person may possess a firearm without endangering others or themselves, and the person has not, subsequent to the issuance of the certificate, again been found not competent to stand trial pursuant to RSA 171-B or RSA 135-C:17-a due to mental disease or defect, or has been involuntarily committed to a community health program in this state pursuant to RSA 135-C:27 - 33 or RSA 135-C:34 - 54.

159-E:2 Notice. The court shall immediately notify the department of safety when a person has been found not competent to stand trial pursuant to RSA 171-B or RSA 135-C:17-a due to mental disease or defect, or has been involuntarily committed to a community health program in this state pursuant to RSA 135-C:27 - 33 or RSA 135-C:34 - 54.

I. All information provided to the department of safety pursuant to RSA 159-E:2 shall be confidential, and shall be maintained separately from all other records maintained by the department of safety, and shall be used only to determine eligibility to purchase or possess firearms. Any person who knowingly furnishes such information for any other purpose shall be guilty of a class A misdemeanor.

II. Any information concerning any person shall be destroyed upon receipt by the department of safety of the certificate issued by the court upon release from treatment or at a later date stating that the person may possess a firearm without endangering others or themselves.

I. Any person who is subject to the provisions of RSA 159-E:1 may petition the superior court in the county of the petitioner's residence for a hearing at any time, although such requests shall be limited to one per year. The request for hearing shall be made on the form prescribed by the department of safety or in a document that includes equivalent language. At such hearing, the petitioner may request the court for an order that he or she may own, possess, control, receive, or purchase firearms. The clerk shall notify the petitioner, the department of safety, and the county attorney of the hearing date.

II. The state shall be the plaintiff in the proceeding and shall be represented by the county attorney. The court shall set the hearing date within 30 days of receipt of the request for hearing. Upon showing of good cause, the county attorney shall be entitled to a continuance not to exceed 14 days after the county attorney was notified of the hearing date by the clerk of the court. If additional continuances are granted, the total length of time for continuances shall not exceed 60 days.

III. The county attorney shall notify the commissioner of the department of health and human services and the mental health professional who treated or evaluated the person subject to RSA 159-E:1. The commissioner of the department of health and human services and the mental health professional shall provide information about the determination that the individual was found not competent to stand trial due to mental disease or defect, or due to the individual's involuntary commitment to a community health program that may be relevant to the court and shall file that information with the court. Such information shall only be disclosed to the petitioner subject to RSA 159-E:1, and to the county attorney.

IV. The court shall hold the hearing in camera with only the relevant parties present, unless the court finds that the public interest would be better served by conducting the hearing in public. Notwithstanding any other provision of law, any declarations, police reports including criminal history information, and other relevant evidence as determined by the court shall be admissible at the hearing under this section.

V. The state shall prove by a preponderance of the evidence that the petitioner would not be likely to use firearms in a safe and lawful manner.

VI. If the court finds that in the hearing under this section the state has not met its burden as set forth in paragraph V, the court shall issue an order allowing the petitioner to own, control, receive, possess, or purchase a firearm. A copy of the order shall be submitted to the department of safety. Upon receipt of the order the department of safety shall delete any reference to the prohibition against firearms from the petitioner's mental health records.

VII. Where the county attorney declines or fails to go forward in the hearing, the court shall issue an order allowing the petitioner to own, control, receive, possess, or purchase a firearm. A copy of the order shall be submitted to the department of safety. Upon receipt of the order, the department of safety shall delete any reference to the prohibition against firearms from the petitioner's mental health records.

VIII. For all persons involuntarily committed to a mental institution, all mental health facilities shall report to the department of safety.

159-E:5 Penalty. Any person who owns or possesses or has under his or her custody or control, or purchases or receives, or attempts to purchase or receive, any firearm in violation of this chapter shall be guilty of a class B felony.

The Department of Safety estimates one-time computer reprogramming costs of $64,390 will be incurred. In addition, the Department assumes that annually, any additional labor costs associated with entering the mental health check information into the criminal records database would be borne by the Judicial Branch.

The Department of Health and Human Services has assumed that providing information in an appeal could take up to four hours of a psychiatrist's time to review pertinent records and prepare a letter. The Department is unable to determine how many appeals would require a letter or if testimony of the treating professional might be required in some or all cases. If appeals were numerous or if testimony was necessary, these additional duties could not be assumed within existing appropriations. However, based on the unknown number of proceedings, the fiscal impact cannot be estimated.

The Judicial Council has stated this bill establishes a new criminal misdemeanor offense and establishes a class B felony. The usual assumptions apply to the analysis applied to these added new criminal charges. In the first instance, it is assumed the party has been found to be indigent. The public defender, then contract attorneys, would be assigned to the case at the flat fee of $250 per misdemeanor and $687.50 per felony charged. If an assigned counsel attorney must be used do to a conflict or for reasons of caseload limitations, the $60 per hour rate would apply, with a fee cap of $1,000 per misdemeanor and $3,000 per felony charged. These fee caps may be waived. There may also be charges for "services other than counsel". The Council is unable to accurately predict the number of cases that may result from these new charges, therefor, an exact fiscal impact for this legislation cannot be determined.

The Association of Counties has stated this bill requires the state act as plaintiff in hearings related to prohibited firearms possession and that the county attorney represent the interest of the state at said hearing. In these instances, the county would be required to absorb the cost of the county attorney's time. The cost of this time will differ in each county, but could range from $50 to $200 per hour depending on the level of expertise required. In addition, the number of hours that would be required for the hearing, related preparation or the number of petitions per year cannot be determined. The Association is unable to accurately estimate the fiscal impact of this bill on the counties.

The Administrative Office of the Courts is unable to estimate the fiscal impact of this bill on the Judicial Branch.