Report 2013-103 Recommendation 34 Responses

Report 2013-103: Armed Persons With Mental Illness: Insufficient Outreach From the Department of Justice and Poor Reporting From Superior Courts Limit the Identification of Armed Persons With Mental Illness (Release Date: October 2013)

Recommendation #34 To: Justice, Department of

To ensure that it fully supports its decision to apply federal prohibition terms to individuals, Justice should review all applicable federal and state laws and continue to seek clarification from the ATF and any other appropriate federal agencies to determine whether California's firearms restoration process meets federal criteria and, if not, why it does not. Justice should issue a report to the Legislature, within one year, detailing the results of its review and, if applicable, communicate why California's restoration process does not meet federal criteria and the impact that it has on prohibited persons who live in California.

Annual Follow-Up Agency Response From November 2019

Pursuant to Title 18, United States Code, Sections 922(d)(4) and (g)(4), an individual "who has been adjudicated as a mental defective or who has been committed to a mental institution" is subject to a permanent federal prohibition of firearm rights. There currently is no federal restoration process applicable to this prohibition, since Congress defunded its relief program. However, federal law also allows states to receive federal grants to develop and implement a relief from disabilities program applicable to Sections 922(d)(4) and (g)(4), provided its programs meet the requirements listed in a checklist that the federal government makes available to the states (ATF E-Form 3210.12).

We have consulted with the Bureau of Alcohol, Tobacco, Firearms and Explosives to consider whether our currently existing state procedures meet the federal criteria for relief. As detailed in our October 23, 2019 letter to the Legislature, there are a number of federal requirements that are not explicitly present in California law.

It is difficult to assess the impact of these requirements on currently prohibited persons in California. Certainly it may present barriers to those who are prohibited under 18 U.S.C. 922(d)(4) and (g)(4). Further, the Department cannot assess how many individuals, currently prohibited under those provisions may be interested in and able to seek relief if available. As set forth above, and in the above-mentioned letter to the Legislature, the Department considers the above-referenced recommendations fully implemented

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

Annual Follow-Up Agency Response From October 2018

The Department has determined what changes to Welfare and Institutions Code sections 8100, et seq. would be required for California to meet federal standards on the restoration of the federal firearm rights of an individual previously committed under Welfare and Institutions Code section 5250. Among other things, the State must provide the applicant with the statutory right to judicial appeal of an adverse decision. The Department conducted this review based on statutory changes recommended by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Prior to proposing potential legislation, the Department is in the process of determining the potential impact these changes might have on the Armed and Prohibited Persons System. At present, the potential impact appears to be minimal because a change to the statutes would not automatically remove a person from the Armed and Prohibited Persons System; the applicant would still be required to initiate and follow through with the judicial process to have his or her firearm rights restored. Also, the number of individuals with any level of mental health commitment that seek the restoration of state rights appears to be minimal when compared to the number of mental health records the Department receives each year. The Department's research is continuing. Upon completion, the Department will determine what if any legislation may be appropriate to ensure that California's firearms restoration process meets federal criteria

California State Auditor's Assessment of Annual Follow-Up Status: Partially Implemented

Annual Follow-Up Agency Response From November 2017

The Department contacted the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) and the Federal Bureau of Investigations' (FBI) National Instant Criminal Background Check System (NICS) requesting a review of California's process for restoration of firearms rights due to mental health prohibitions. BATFE responded indicating that California should implement statutory changes to its state process for restoration of firearms rights due to mental health prohibitions in order to be in compliance with the NICS Improvement Amendments Act of 2007. The Department is reviewing the suggested changes and intends to prepare proposed legislative fixes to the governing statutes.

California State Auditor's Assessment of Annual Follow-Up Status: Partially Implemented

Annual Follow-Up Agency Response From October 2016

The Department contacted the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) and requested a review of California's process for restoration of firearms rights due to mental health prohibitions. The Department has requested a response from BATFE by the end of 2016.

California State Auditor's Assessment of Annual Follow-Up Status: Not Fully Implemented

Annual Follow-Up Agency Response From October 2015

The Department is still awaiting a determination from the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) regarding a review of California's process for restoration of firearms rights due to mental health prohibitions. The Department sent emails to the BATFE counsel in March, April and October 2014 requesting to speak regarding the status of their determination. The Department will continue to seek a response from BATFE. A fourth request will be sent again in November 2015.

California State Auditor's Assessment of Annual Follow-Up Status: Partially Implemented

Justice has not yet reported to the Legislature about the results of its review of all applicable federal and state laws related to firearm restorations.

1-Year Agency Response

The Department is still awaiting a determination from the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) regarding a review of California's process for restoration of firearms rights due to mental health prohibitions. The Department sent emails to the BATFE counsel in March, April and October of 2014 requesting to discuss the status of their determination.

California State Auditor's Assessment of 1-Year Status: Partially Implemented

Justice has reached out to the ATF and has indicated in its response that it is still waiting for a response. However, Justice has not yet reported to the Legislature about the results of its own review of the California restoration process and how that restoration process does or does not meet federal criteria. As a result, we continue to assess this recommendation as partially implemented.

6-Month Agency Response

The Department is still awaiting a determination from the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) regarding a review of Californias process for restoration of firearms rights due to mental health prohibitions. The Department sent emails to BATFE counsel in March and April 2014 requesting to speak with them regarding the status of their determination.

California State Auditor's Assessment of 6-Month Status: Partially Implemented

60-Day Agency Response

The Department sent a letter to both ATF and FBI NICS on November 7, 2013 requesting a review of California's process for restoration of firearm rights due to mental health prohibitions. Subsequently, on November 12, 2013, Bureau of Firearms Chief Stephen Lindley received a call from ATF Counsel Jeanne Miller. DAG IV Kimberly Granger spoke to ATF Counsel Miller on November 19, 2013, and was advised that ATF is conducting research on California's restoration processes.

California State Auditor's Assessment of 60-Day Status: Partially Implemented

All Recommendations in 2013-103

Agency responses received are posted verbatim.