2013 -- S 0861

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LC02369

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS -- RELIEF FROM DISQUALIFIERS BOARD

     Introduced By: Senators Nesselbush, Sosnowski, Cool Rumsey, Archambault, and Lombardi

     Date Introduced: April 11, 2013

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 40.1 of the General Laws entitled "BEHAVIORAL HEALTHCARE,

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DEVELOPMENTAL DISABILITIES AND HOSPITALS" is hereby amended by adding thereto

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the following chapter:

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     CHAPTER 30

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RELIEF FROM DISQUALIFIERS BOARD

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     40.1-30-1. Legislative findings. -- It is found and declared as follows:

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     (1) Recent and well-publicized events, including the tragic shootings at Sandy Hook

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Elementary School in neighboring Connecticut, have called into question how we as a society

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deal with firearm violence, behavioral health, and public safety;

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     (2) Of particular concern is how the state of Rhode Island deals with the intersection of

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behavioral health and firearms safety;

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     (3) The Brady Handgun Violence Prevention Act of 1993 (Brady Act) requires Federal

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Firearms Licensees (FFLS) to use the National Instant Criminal Background Check System

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(NICS) to determine if a person is disqualified from receiving or possessing firearms to conduct a

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search of available records;

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     (4) The National Instant Criminal Background Check System (NICS) conducts records

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searches in three (3) databases: the National Crime Information Center (NCIC), which contains

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information on wanted persons and protection orders; the Interstate Identification Index (III),

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which contains criminal history records; and the NICS Index, which contains the names of

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prohibited persons as defined in the Brady Act;

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     (5) The NICS Index consists of individuals who are determined to be prohibited from

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possessing a firearm when disqualifying information is not available through the NCIC or III

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systems;

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     (6) The NICS Improvement Act of 2007 (NIAA) amends the Brady Act and was enacted

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in the wake of the April 2007 shooting tragedy at Virginia Tech to address the gap in information

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available to the NICS about prohibiting mental health adjudications and commitments and other

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prohibiting backgrounds, which will better enable the system to operate as intended, to keep guns

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out of the hands of persons prohibited by state or federal law from receiving or possessing

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firearms.

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     (7) Pursuant to federal and state law the state of Rhode Island will contribute

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disqualifying information on individuals to the NICS Index, including information on persons

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with mental health adjudications or commitments or controlled substance abusers;

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     (8) The state of Rhode Island will review the records in the state records repositories and

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make improvements where needed to ensure that information is accurate so that individuals with

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disqualifying backgrounds are prohibited from receiving or possessing firearms.

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     (9) A condition for participation in federal grant programs to support records

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improvement is the creation and certification of a relief program under state law that permits a

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person adjudicated as prohibited from receiving or possessing a firearm imposed by 18 U.S.C.

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section 922 (d) (4) or g (4) to apply for relief.

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     40.1-30-2. Relief board -- Appointment and terms of members. -- Within the

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department of behavioral healthcare, developmental disabilities and hospitals there shall be a

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relief board consisting of five (5) qualified electors of the state appointed by the governor, subject

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to the advice and consent of the senate, who shall serve for a term of three (3) years.

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     40.1-30-3. Qualification of board members. -- The five (5) electors to be named by the

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governor shall have the following qualifications:

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     (1) Two (2) of the qualified electors one of whom shall be a psychiatrist and one of

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whom shall be a psychologist, both licensed to practice medicine in the state of Rhode Island, and

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one of which shall be either a forensic psychiatrist or forensic psychologist;

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     (2) One shall be an active member of law enforcement in the state of Rhode Island;

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     (3) One member shall be the director of the department of behavioral healthcare,

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developmental disabilities and hospitals, or his/her designee.

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     (4) One member shall be the mental health advocate or his or designee.

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     40.1-30-4. Facilities and supplies for board. -- The director of the behavioral

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healthcare, developmental disabilities and hospitals shall provide adequate quarters for the board

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for the purpose of holding meetings and hearings and shall provide space and facilities for the

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keeping of records for the board, together with the necessary equipment and supplies incident to

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the maintenance of the board.

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     40.1-30-5. Petition for relief from disqualifiers. -- (a) Any person having a state

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firearms disqualifier or a federal firearms disqualifier under 18 USC 922 (d) (4) or (g)(4), as a

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result of an adjudication or commitment rendered in this state may petition the relief board for

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relief from the firearms disqualifier that resulted from such adjudication or commitment.

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     (b) The petitioner shall submit to the relief board, together with the petition and the

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release required by subsection (c) of this section, information in support of the petition, including,

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but not limited to:

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     (1) Certified copies of medical records detailing the petitioner's psychiatric history where

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applicable, including records pertaining to the specific adjudication or commitment that is the

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subject of the petition;

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     (2) Certified copies of medical records from all of the petitioner's current treatment

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providers , if the petitioner is receiving treatment;

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     (3) A certified copy of all criminal history information maintained on file by the state

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bureau of criminal identification and the Federal Bureau of Investigation pertaining to the

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petitioner or a copy of the response from said bureaus indicating there is no criminal history

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information on file;

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     (4) Evidence of the petitioner's reputation, which may include notarized letters of

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reference from current and past employers, letters and other forms of personal attestation from

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family members or personal friends, affidavits from the petitioner or other character evidence;

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and

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     (5) Any further information or documents specifically requested by the board which

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documents shall be certified copies of original documents.

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     (6) Any other person determined by the board to have an interest in the matter may

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present any and all relevant information at the board hearing and in any appeal to the superior

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court.

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     (c) The petitioner shall provide for the release of all of the petitioner's records that may

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relate to the petition, including, but not limited to, health, mental health, military, immigration,

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juvenile court, mental health court, civil court and criminal records, on a form prescribed by the

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relief board. The releases shall authorize the director of behavioral healthcare, developmental

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disabilities and hospitals, or his/her designee, to obtain any of such records for use at the relief

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board hearing or any appeal from the decision of the board. Releases of information for the

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purposes of this section are limited to the relief board, the director, or his/her designee, and any

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parties involved in the relief hearing as determined by the board. Except as expressly provided in

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this section, no such release shall constitute a waiver of the confidentiality protections of the

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petitioner under state and federal law and all parties to a relief hearing are bound by said

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confidentiality laws.

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     (d) The petitioner shall ensure that all required information accompanies the petition at

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the time it is submitted to the board. At the discretion of the board, information provided after

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receipt of the petition by the board may be considered. Information specifically requested by the

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board must be received by the board no later than fifteen (15) calendar days after the date of the

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request in order for the information to be considered. The board may extend such time period for

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good cause shown. Failure to provide the requested information within such time period may

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result in a denial of the petition.

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     (e) Upon the filing of the petition, the relief board shall set a date, time and place for a

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hearing within sixty (60) calendar days of receipt of the petition, and shall give notice of such

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hearing to:

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     (1) The petitioner;

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     (2) the court that rendered the adjudication or commitment;

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     (3) the conservator appointed for the petitioner, if any; and

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     (4) any other person determined by the board to have an interest in the matter.

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     (f) The board shall cause a recording of the testimony given at such hearing to be made.

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Such recording shall be transcribed only in the event of an appeal from the decision rendered by

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the board under this section. A copy of such transcript shall be furnished without charge to any

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appellant whom the board finds is unable to pay for such copy.

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     (g) The petitioner shall have the burden of establishing by clear and convincing evidence

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that:

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     (1) The petitioner is not likely to act in a manner that is dangerous to public safety; and

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     (2) Granting relief from the federal and state firearms disqualifier is not contrary to the

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public interest.

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     (h) In determining whether to grant relief under this section, the board shall consider the

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following:

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     (1) The circumstances regarding the firearms disqualifier imposed by state law, 18 USC

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922(d)(4) or 18 USC 922(g)(4);

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     (2) The petitioner's record, which shall include, at a minimum, the petitioner's mental

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health records and criminal history records, if any;

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     (3) The petitioner's reputation, which the petitioner must demonstrate through character

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witness statements, testimony or other character evidence; and

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     (4) Any other relevant information provided by the petitioner or any other person

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determined by the board to have an interest in the matter.

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     (i) The board shall grant relief under this section if it finds by clear and convincing

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evidence that:

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     (1) The petitioner will not be likely to act in a manner dangerous to public safety, and

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     (2) Granting the relief will not be contrary to the public interest.

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     (j) The board shall include in its decision the specific findings of fact on which it bases its

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decision.

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     (k) The petitioner may appeal the final decision of the relief board for the denial of relief

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to the superior court for review:

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     (1) Review must include the record of the relief board pertaining to the petitioner;

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     (2) Review may include additional evidence necessary to conduct an adequate review;

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     (3) Notwithstanding any provision of the general statutes, any review of the decision of

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the relief board by the superior court shall be de novo.

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     (l) As soon as practicable after receiving notice of the decision of the board granting

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relief, the director of behavioral healthcare, developmental disabilities and hospitals, or his/her

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designee, shall:

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     (1) Coordinate the removal or cancellation of the record in the National Instant Criminal

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Background Check System (NICS), and

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     (2) Notify the attorney general of the United States that the basis of the record no longer

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applies.

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     (m) All proceedings of the relief board under the provisions of this section shall be closed

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to the public and all records of the proceedings shall be confidential and not subject to disclosure

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except to the petitioner and/or his or her counsel, unless the relief board, after notice to the parties

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and a hearing, determines that such records should be disclosed for good cause shown.

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     40.1-30-6. Rules and regulations. -- The director of behavioral healthcare,

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developmental disabilities and hospitals shall promulgate rules and regulations governing the

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application and granting and denial of relief imposed under state law, 18 U.S.C. 922 (d)(4) or

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(g)(4).

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     SECTION 2. This act shall take effect upon passage.

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LC02369

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS -- RELIEF FROM DISQUALIFIERS BOARD

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     This act would create the relief from disqualifier board which would hear petitions from

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person seeking relief from a federal firearms disability.

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     This act would take effect upon passage.

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LC02369

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