See our Mental Health Reporting policy summary for a comprehensive discussion of this issue.
Federal law prohibits possession of a firearm or ammunition by any person who has been “adjudicated as a mental defective” or involuntarily “committed to any mental institution.”1 No federal law, however, requires states to report the identities of these individuals to the National Instant Criminal Background Check System (“NICS”) database, which the FBI uses to perform background checks prior to firearm transfers.
Before 2015, Vermont had no laws requiring the reporting of mental health information to NICS, and Vermont still has no law requiring the reporting of mental health information to NICS regarding individuals adjudicated as mentally defective or incompetent.
However, in 2015, Vermont enacted a law requiring the Court Administrator to report to NICS the identities of individuals subject to a court ordered mental health commitment, hospitalization, or treatment within 48 hours after the court order.2 The report shall include only information sufficient to identify the person, the reason for the report, and a statement that the report is made in accordance with federal law, 18 U.S.C. Section 922(g)(4).3 Such reports are confidential and generally exempt from public inspection and may not be used for any purpose other than for submission to NICS.4 A copy of the report must also be provided to the person who is the subject of the report, with a written notice to the person who is the subject of the report that he or she is not thereafter permitted to possess a firearm.5
The law also requires the state Department of Mental Health to report to the Court Administrator, on or before October 1, 2015, the names of all persons under the custody of the Department who are currently subject to such court orders and requires the Court Administrator to report those names to the NICS database. 6.
The law also enacted a procedure for persons prohibited by federal law from possessing firearms due to mental illness to petition the Family Division of the Superior Court for relief from the federal firearm prohibition.7 The petition must be filed in the county where the offense or the adjudication occurred.8 When the petition is filed, the petitioner must provide notice and a copy of the petition to the State’s Attorney or the Attorney General, who shall be the respondent in the matter.9 The Court is required to grant the petition without a hearing if neither the State’s Attorney nor the Attorney General files an objection within six months after receiving notice of the petition, or if the respondent and petitioner stipulate to the granting of the petition.10
If the Court does not grant the petition without a hearing, as outlined above, the Court shall consider:
- the circumstances regarding the firearms disabilities imposed on the person by 18 U.S.C. § 922(g)(4);
- the petitioner’s record, including his or her mental health and criminal history records; and
- the petitioner’s reputation, as demonstrated by character witness statements, testimony, or other character evidence.11
The Court shall grant the petition if it finds that the petitioner has demonstrated by a preponderance of the evidence that her or she is no longer a person in need of treatment.12 A “person in need of treatment” means “a person who has a mental illness and, as a result of that mental illness, his or her capacity to exercise self-control, judgment, or discretion in the conduct of his or her affairs and social relations is so lessened that he or she poses a danger of harm to himself, to herself, or to others.”13
If the petition is granted, the Court is required to enter an order declaring that the basis under which the person was prohibited from possessing firearms by 18 U.S.C. § 922(g)(4) no longer applies. The Court shall then inform the FBI, NICS, and the U.S. Attorney General, of its decision.14 If the Court denies the petition, the petitioner may then appeal the denial to the Vermont Supreme Court for a de novo review on the record.15 The person may also re-file a petition at least one year after the order of the trial court, or of the Supreme Court if an appeal is taken, becomes final.16
For general information on the background check process and categories of prohibited purchasers or possessors, see the Vermont Background Checks section and the section entitled Prohibited Purchasers Generally in Vermont.
- 18 U.S.C. § 922(d)(4). ⤴︎
- See 2015 VT S.B. 141, enacting Vt. Stat. Ann. tit. 13, § 4824 and tit. 18, § 7617a. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- See 2015 VT S.B. 141, Sect. 8 ⤴︎
- See 2015 VT S.B. 141, enacting Vt. Stat. Ann. tit. 13, § 4825. ⤴︎
- Vt. Stat. Ann. tit. 13, § 4825(a)(1). ⤴︎
- Id. At the time a petition is filed, the respondent must give notice of the petition to a victim of the offense, if any, who is known to the respondent. The victim shall have the right to offer the respondent a statement prior to any stipulation or to offer the Court a statement. Vt. Stat. Ann. tit. 13, § 4825(g). ⤴︎
- Vt. Stat. Ann. tit. 13, § 4825(a)(2)(A), (B). ⤴︎
- Vt. Stat. Ann. tit. 13, § 4825(b). ⤴︎
- Vt. Stat. Ann. tit. 13, § 4825(c). ⤴︎
- Vt. Stat. Ann. tit. 18, § 7101(17). ⤴︎
- Vt. Stat. Ann. tit. 13, § 4825(d). ⤴︎
- Vt. Stat. Ann. tit. 13, § 4825(e). ⤴︎
- Vt. Stat. Ann. tit. 13, § 4825(f). ⤴︎