Text: H.R.4344 — 115th Congress (2017-2018)All Information (Except Text)

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Introduced in House (11/09/2017)


115th CONGRESS
1st Session
H. R. 4344


To incentivize State reporting systems that allow mental health professionals to submit information on certain individuals deemed dangerous for purposes of prohibiting firearm possession by such individuals, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

November 9, 2017

Mr. Cicilline (for himself, Mr. Khanna, Mr. McGovern, and Mr. Blumenauer) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To incentivize State reporting systems that allow mental health professionals to submit information on certain individuals deemed dangerous for purposes of prohibiting firearm possession by such individuals, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “End Purchase of Firearms by Dangerous Individuals Act of 2017”.

SEC. 2. State reporting systems.

(a) State reporting systems as condition of receiving full Edward Byrne Memorial Justice Assistance Grants amounts.—

(1) IN GENERAL.—For each fiscal year beginning with fiscal year 2019, a State shall—

(A) establish a reporting system, in accordance with guidelines provided pursuant to section 4(a), through which mental health professionals may report to appropriate State entities—

(i) in accordance with paragraph (2), information described in such paragraph with respect to individuals described in such paragraph;

(ii) in accordance with paragraph (3), information described in such paragraph with respect to individuals described in such paragraph; and

(iii) in accordance with paragraph (4), information described in such paragraph with respect to individuals described in such paragraph;

(B) establish under State law a process, in accordance with the guidelines provided pursuant to section 4(b), relating to temporarily committing individuals involuntarily to, or holding individuals involuntarily at, mental health facilities;

(C) from the information collected by the State pursuant to subparagraph (A), make electronically available to the Attorney General records relevant to a determination of whether a person is disqualified from possessing or receiving a firearm under subsection (g)(4) of section 922 of title 18, United States Code, or applicable State law;

(D) upon notification under a subsequent paragraph of this section or subparagraph (G), or otherwise as specified under such paragraph or subparagraph, that the basis under which a record was made available under subparagraph (A) does not apply, or no longer applies, shall, as soon as practicable—

(i) update, correct, modify, or remove, as applicable, the record from any database that the Federal or State government maintains and makes available to the National Instant Criminal Background Check System, consistent with the rules pertaining to that database; and

(ii) notify the Attorney General that such basis no longer applies so that the record system in which the record is maintained is kept up to date;

(E) ensure that the information submitted to the reporting system pursuant to this subsection—

(i) with respect to an individual described in paragraph (3), is removed from such system on the date described in the second sentence of such paragraph; and

(ii) with respect to an individual described in paragraph (4), is removed from such system on the date described in the second sentence of such paragraph;

(F) ensure that the reporting system established under subparagraph (A) includes an appeals process comparable to such a process applied with respect to the National Instant Criminal Background Check System, including with respect to procedures for notifications of individuals with respect to whom information is submitted to the reporting system and an opportunity to review and appeal such submission; and

(G) (i) ensure that any individual who—

(I) is disqualified from possessing or receiving a firearm under subsection (g)(4) of section 922, of title 18, United States Code, or applicable State law pursuant to information reported through the reporting system established under subparagraph (A); and

(II) at the time of inclusion of such information in such reporting system is under 18 years of age,

is evaluated by a mental health professional by not later than the date the individual is 21 years of age in order to determine if such individual should remain so disqualified; and

(ii) upon determination that such individual should not remain so disqualified, notify the appropriate State entity that the information so reported no longer applies for inclusion in the reporting system or any database or record described in subparagraph (D).

(2) INDIVIDUALS TEMPORARILY COMMITTED ON A VOLUNTARY BASIS.—For purposes of subsection (a)(1)(A)(i), in the case of an individual who is committed on a voluntary basis to a mental institution (as defined for purposes of section 922(g)(4) of title 18, United States Code) in a State, the mental health professional who is primarily responsible for the individual’s treatment at such institution—

(A) may report to the reporting system established by the State under paragraph (1)(A) information with respect to such individual that is sufficient for inclusion in the National Instant Criminal Background Check System and consistent with Federal and State privacy laws if such mental health professional determines, in accordance with the guidelines provided pursuant to section 4(a) and with section 5(c), such individual is a danger to the individual or to others; and

(B) upon discharge of such individual from such institution, shall notify the appropriate State entity that the information submitted under subparagraph (A) no longer applies for inclusion in the reporting system established under paragraph (1)(A) or any database or record described in paragraph (1)(D).

(3) INDIVIDUALS TEMPORARILY COMMITTED OR HELD ON AN INVOLUNTARY BASIS.—For purposes of subsection (a)(1)(A)(ii), in the case of an individual who is temporarily committed or held on an involuntary basis, in accordance with a process described in paragraph (1)(B), to a mental institution (as defined for purposes of section 922(g)(4) of title 18, United States Code) in a State, the mental health professional who is primarily responsible for the individual’s treatment at such institution may report to the reporting system established by the State under paragraph (1)(A), as soon as is practicable after the date the individual is released from such institution, information with respect to such individual that is sufficient for inclusion in the National Instant Criminal Background Check System and consistent with Federal and State privacy laws if such mental health professional determines, in accordance with the guidelines provided pursuant to section 4(a) and with section 5(c), such individual is a danger to the individual or to others. On the date that is 5 years after the date of such release, for purposes of subsections (a)(1)(D) and (b)(1), the appropriate State entity and the Attorney General shall be deemed to have been notified that the information submitted under the previous sentence no longer applies for inclusion in the reporting system established under paragraph (1)(A) or any database or record described in paragraph (1)(D).

(4) INDIVIDUALS MAKING SPECIFIC THREAT TO MENTAL HEALTH PROFESSIONAL.—For purposes of subsection (a)(1)(A)(iii), in the case of an individual who communicates to a mental health professional a serious threat, as determined by the professional in accordance with the guidance provided pursuant to section 4(a), of physical violence against another individual who is reasonably identifiable, the mental health professional may report to the reporting system established by the State under paragraph (1)(A), as soon as is practicable after the date of such communication, information with respect to such individual that is sufficient for inclusion in the National Instant Criminal Background Check System and consistent with Federal and State privacy laws. On the date that is 6 months after the date of such report, for purposes of subsections (a)(1)(D) and (b)(1), the appropriate State entity and the Attorney General shall be deemed to have been notified that the information submitted under the previous sentence no longer applies for inclusion in the reporting system established under paragraph (1)(A) or any database or record described in paragraph (1)(D).

(b) National Instant Criminal Background Check System updates required.—

(1) IN GENERAL.—The Attorney General upon receiving notice pursuant to subsection (a)(1)(D) shall ensure that the record in the National Instant Criminal Background Check System is updated, corrected, modified, or removed within 30 days of receipt.

(2) SPECIFIC INFORMATION REMOVED FROM RECORD.—The Attorney General shall ensure that the information submitted to the National Instant Criminal Background Check System pursuant to subsection (a)—

(A) with respect to an individual described in paragraph (3) of subsection (a), is removed from such system on the date described in the second sentence of such paragraph; and

(B) with respect to an individual described in paragraph (4) of subsection (a), is removed from such system on the date described in the second sentence of such paragraph.

(c) Enforcement.—

(1) ATTORNEY GENERAL REPORT.—

(A) IN GENERAL.—Not later than January 31 of each year, the Attorney General shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the progress of the States in implementing and maintaining the reporting system described in subparagraph (A) of subsection (a)(1) and process described in subparagraph (B) of such subsection, and in providing that information pursuant to the requirements of subparagraphs (C) and (D) of such subsection.

(B) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Department of Justice, such funds as may be necessary to carry out subparagraph (A).

(2) PENALTIES.—

(A) DISCRETIONARY REDUCTION.—

(i) For each year during the 2-year period beginning 3 years after the date of enactment of this Act, the Attorney General may withhold not more than 3 percent of the amount that would otherwise be allocated to a State for such year under section 505 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3755) if the State is not in compliance with each requirement under subsection (a)(1) with respect to such year.

(ii) For each year during the 5-year period after the expiration of the period referred to in clause (i), the Attorney General may withhold not more than 4 percent of the amount that would otherwise be allocated to a State for such year under section 505 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3755) if the State is not in compliance with each requirement under subsection (a)(1) with respect to such year.

(B) MANDATORY REDUCTION.—For each year after the expiration of the periods referred to in subparagraph (A), the Attorney General shall withhold 5 percent of the amount that would otherwise be allocated to a State for such year under section 505 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3755), if the State is not in compliance with each requirement under subsection (a)(1) with respect to such year.

(C) WAIVER BY ATTORNEY GENERAL.—The Attorney General may waive the applicability of subparagraph (B) to a State with respect to the requirements described in subparagraphs (A), (B), and (C) of subsection (a)(1) if the State provides substantial evidence, as determined by the Attorney General, that the State is making a reasonable effort to comply with such requirements.

(3) REALLOCATION.—Any funds that are not allocated under section 505 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3755) to a State pursuant to paragraph (2) because of the failure of the State to comply with the requirements of subsection (a)(1) shall be reallocated under such section to States that meet such requirements.

SEC. 3. Additional Firearms Prohibitions to Federal NICS System Based on State Reporting Systems.

Section 922 of title 18, United States Code, is amended—

(1) in subsection (d)—

(A) by amending paragraph (4) to read as follows:

“(4) has been—

“(A) adjudicated as a mental defective; or

“(B) committed to any mental institution, and—

“(i) in the case of a voluntary commitment—

“(I) has been determined by a mental health professional, in accordance with section 5(c) of the End Purchase of Firearms by Dangerous Individuals Act of 2017, to present a danger to others; and

“(II) is serving a period of commitment at such institution;

“(ii) in the case of a temporary involuntary commitment or hold through a process established pursuant to section 2(a)(1)(B) of the End Purchase of Firearms by Dangerous Individuals Act of 2017—

“(I) has been determined by a mental health professional, in accordance with section 5(c) of the End Purchase of Firearms by Dangerous Individuals Act of 2017, to present a danger to others; and

“(II) is serving a period of commitment at such institution, or has been released from such institution for a period of less than 5 years; or

“(iii) in the case of a formal commitment by a court, board, commission, or other lawful authority, is serving a period of commitment at such institution, or has been released from such institution;”;

(B) in paragraph (8), by striking “or” at the end;

(C) in paragraph (9), by striking the period at the end and inserting “; or”; and

(D) by inserting after paragraph (9), the following new paragraph:

“(10) during the prior 6-month period, has communicated to a mental health professional a serious threat to commit an act of physical violence against another identifiable person.”; and

(2) in subsection (g)—

(A) by amending paragraph (4) to read as follows:

“(4) who has been—

“(A) adjudicated as a mental defective; or

“(B) committed to any mental institution, and—

“(i) in the case of a voluntary commitment—

“(I) has been determined by a mental health professional, in accordance with section 5(c) of the End Purchase of Firearms by Dangerous Individuals Act of 2017, to present a danger to others; and

“(II) is serving a period of commitment at such institution;

“(ii) in the case of a temporary involuntary commitment or hold through a process established pursuant to section 2(a)(1)(B) of the End Purchase of Firearms by Dangerous Individuals Act of 2017—

“(I) has been determined by a mental health professional, in accordance with section 5(c) of the End Purchase of Firearms by Dangerous Individuals Act of 2017, to present a danger to others; and

“(II) is serving a period of commitment at such institution, or has been released from such institution for a period of less than 5 years; or

“(iii) in the case of a formal commitment by a court, board, commission, or other lawful authority, is serving a period of commitment at such institution, or has been released from such institution;”;

(B) in paragraph (8), by striking “or” at the end;

(C) in paragraph (9), by striking the comma at the end and inserting “; or”; and

(D) by inserting after paragraph (9), the following new paragraph:

“(10) who has communicated to a mental health professional a serious threat to commit an act of physical violence against another identifiable person, for a period of 6 months after making such a threat,”.

SEC. 4. Guidelines.

(a) General guidelines for State reporting systems.—Not later than 16 months after the date of the enactment of this Act, the Secretary of Health and Human Services shall, pursuant to rulemaking and in accordance with subsection (d), establish guidelines for States and mental health professionals, with respect to establishing reporting systems under section 2(a)(1)—

(1) to ensure determinations described in paragraphs (2) and (3) of section 2(a) of dangerousness and determinations described in section 2(a)(4) of serious threat for purposes of reporting information under section 2(a)(1) are administered properly;

(2) to ensure that only individuals qualified to make such determinations are permitted to do so;

(3) to ensure an individual has recourse at any point during the detention of such individual at a mental health institution on the basis of a voluntary or involuntary commitment to contest the legality of such commitment or determination of dangerousness by means of a “habeas corpus” or writ hearing;

(4) to ensure all reporting to law enforcement officials, State-based databases, and National Instant Criminal Background Check System are compliant with applicable Federal and State privacy and security protections and standards;

(5) to recommend the process by which qualified professionals should assess an individual to determine dangerousness for purposes described in section 2; and

(6) for any other purpose deemed necessary by the Secretary.

(b) Temporary involuntary commitment or hold process guidelines.—Not later than 16 months after the date of the enactment of this Act, the Secretary of Health and Human Services shall, pursuant to rulemaking and in accordance with subsection (d), establish guidelines for States to establish a process for temporarily committing or holding individuals on an involuntary basis to mental health institutions. Such guidelines shall address at least the following:

(1) DUE PROCESS.—Guidelines to ensure any determination that an individual shall be temporarily involuntarily committed or held is assessed by more than one qualified mental health professional.

(2) QUALIFIED PROFESSIONALS.—Guidelines to determine which mental health professionals are qualified to handle the responsibilities provided such professionals under section 2.

(3) RECOMMENDATIONS IN ASSESSING PATIENTS.—Guidelines recommending the process by which qualified professionals should assess an individual to determine dangerousness for purposes described in section 2.

(4) TREATMENTS.—

(A) IN GENERAL.—Guidelines for how any individual designated to be temporarily involuntary committed or held and who is receiving medication as a result of the mental illness of such individual must be advised about the probable effects and possible side effects of the medication.

(B) INFORMATION ON MEDICATION.—Guidelines for requiring the following information related to medications to be given to such an individual:

(i) The nature of the mental illness or behavior that is the reason the medication is being given or recommended.

(ii) The likelihood of such mental illness or behavior improving or not improving without the medication.

(iii) Reasonable alternative treatments available.

(iv) The name and type, frequency amount, and method of dispensing the medication, and the probable length of time the medication will be taken.

(5) ASSESSMENT.—Guidelines related to the process of assessing an individual for a temporary involuntary commitment or hold, which shall incorporate the following requirements:

(A) FACE TO FACE.—Prior to admitting an individual to a mental health facility pursuant to such commitment, the qualified mental health professional in charge of the facility or designee of such professional shall assess the individual with a face to face assessment to determine the appropriateness of the temporary involuntary detention or hold.

(B) VERIFICATION FROM SECOND PROFESSIONAL.—A second mental health professional shall independently verify the appropriateness of the temporary involuntary detention or hold.

(6) ADVISEMENT.—Guidelines related to advising such an individual orally and in written form during the following steps in the process of the individual being temporarily involuntarily committed or held:

(A) TRANSPORT.—After an initial detention by a qualified professional (as defined by the State) to transport a patient to a facility, an oral advisement containing critical information as determined by the Secretary must be given to the individual being transported to a facility for an assessment.

(B) UPON ADMISSION.—Upon admission, after a determination of dangerousness by a qualified professional, an oral advisement by a mental health professional containing critical information as determined by the Secretary must be given to the individual.

(7) ADDITIONAL GUIDELINES.—Any other guidelines deemed necessary by the Secretary for purposes of this Act.

(c) Certification process.—The Secretary of Health and Human Services shall establish a process for certifying that States are in compliance with the guidelines described in subsections (a) and (b) for purposes of establishing the compliance of such States under section 2(c).

(d) Consultation with stakeholders.—In establishing guidelines described in paragraphs (1), (2), and (5) of subsection (a) and paragraphs (2), (3), (4), and (5) of subsection (b), the Secretary of Health and Human Services shall consult with relevant mental health professional organizations and stakeholders, such as the American Psychological Association and the American Psychiatric Association.

SEC. 5. Miscellaneous.

(a) Individuals temporarily involuntarily committed or held To be treated as distinct from others who are involuntarily committed.—For purposes of the National Instant Criminal Background Check System, the provisions of this Act, and section 922 of title 18, United States Code, individuals who are temporarily involuntarily committed or held under a State-level process with respect to which the State has been certified under section 4(c) shall be treated as a separate and distinct population from individuals who are involuntarily committed through a judicial process.

(b) Limiting liability for mental health professionals.—Any mental health professional who does not report under a reporting system established under section 2(a)(1), in accordance with guidelines established under section 4(a), information described in paragraph (2), (3), or (4) of section 2(a), with respect to an individual described in such respective paragraph, shall not be held liable in any civil action in State or Federal court for any damages resulting from such failure to report such information.

(c) Determination of dangerousness.—For purposes of this Act, a determination of dangerousness, with respect to an individual, shall be predicated on the presence of either—

(1) a substantial risk of physical harm to the individual as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; or

(2) a substantial risk of physical harm to another individual as manifested by evidence of homicidal or other violent behavior or evidence that such other individual is placed in reasonable fear of violent behavior and physical harm to such other individual.

(d) Study on existing State statutes.—

(1) STUDY.—The Secretary of Health and Human Services (in this subsection referred to as the “Secretary”) shall enter into an agreement with the Institute of Medicine (or if the Institute declines to enter into such an agreement, another appropriate entity) to conduct a comprehensive study on State statutes, enacted before the date of the enactment of this Act, that require mental health professionals to directly report certain individuals into State firearm prohibition databases.

(2) CONSIDERATIONS.—The study under paragraph (1) shall include consideration of the following:

(A) How the State statutes described in such paragraph impact the quality of care provided by mental health professionals to patients.

(B) How such State statutes impact a patient’s decision to access mental health treatment.

(C) The effectiveness of such State statutes as interventions for preventing firearm-related violence.

(D) Any other relevant considerations, as determined by the Institute of Medicine (or, if applicable, the other appropriate entity described in paragraph (1)).

(3) REPORT.—The Secretary shall ensure that, not later than 12 months after the date of enactment of this Act—

(A) the study under subparagraph (1) is completed; and

(B) a report on the finding and conclusions of such study is submitted to the Congress.

(e) Amending references from persons adjudicated as a mental defective to ineligible due to disqualifying mental status.—

(1) IN GENERAL.—

(A) Section 175b(d)(2)(F) of title 18, United States Code, is amended by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”.

(B) Section 842 of title 18, United States Code, is amended—

(i) in subsection (d)(6), by striking “adjudicated a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”; and

(ii) in subsection (i)(4), by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”.

(C) Section 922 of title 18, United States Code, as amended by section 3 of this Act, is amended—

(i) in subsection (d)(4)(A), by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”;

(ii) in subsection (g)(4)(A), by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”; and

(iii) in subsection (s)(3)(B)(iv), by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”.

(D) The NICS Improvement Amendments Act of 2007 (18 U.S.C. 922 note) is amended—

(i) in section 3(2), by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”;

(ii) in section 101—

(I) in subsection (b)(2)(C)(ii), by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”;

(II) in subsection (c)(1)(C), by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”;

(III) in subsection (c)(3), in the matter preceding subparagraph (A), by striking “adjudicate a person as a mental defective,” and inserting “adjudicate a person as ineligible due to disqualifying mental status”; and

(IV) in subsection (c)(3)(A), by striking “adjudicate the person as a mental defective,” and inserting “adjudicate the person as ineligible due to disqualifying mental status”; and

(iii) in section 102—

(I) in subsection (b)(1)(C)(iv), by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”; and

(II) in subsection (c)(3), by striking “adjudicated as a mental defective,” and inserting “adjudicated as ineligible due to disqualifying mental status”.

(2) REFERENCES.—For purposes of each provision amended by paragraph (1), a reference to a person adjudicated as ineligible due to disqualifying mental status shall be considered to refer to a person adjudicated as a mental defective, as defined for that provision on the day before the date of enactment of this Act.

(3) REGULATIONS.—For purposes of regulations issued to carry out a provision amended by paragraph (1)—

(A) before the regulations are amended to carry out this subsection a reference in the regulations to a person adjudicated as a mental defective shall be considered to be a reference to a person adjudicated as ineligible due to disqualifying mental status; and

(B) in amending the regulations to carry out this subsection, a Federal agency shall ensure that the regulations clearly state that persons adjudicated as ineligible due to disqualifying mental status were formerly termed persons adjudicated as a mental defective.

(4) RULE OF CONSTRUCTION.—Nothing in this subsection shall be construed to alter or otherwise affect the definition of persons previously termed “adjudicated as a mental defective” under provisions amended by paragraph (1).