ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 185
(By Senators Tomblin, Mr. President, and Caruth,
By Request of the Executive)
____________
[Passed March 6, 2008; in effect ninety days from passage.]
____________
AN ACT to amend and reenact
§27-3-1
of the Code of West Virginia,
1931, as amended;
to amend and reenact
§61-7-7
of said code;
and to amend said code
by adding thereto a new article,
designated §61-7A-1, §61-7A-2, §61-7A-3, §61-7A-4 and §61-7A-
5
,
all relating to clarifying mental conditions which prohibit
firearms' possession and disclosure of prohibited firearm
possession; disclosure of confidential information; notice of
surrender of firearms under certain conditions; right to
petition to regain ability to possess firearms; legislative
intent; definitions; requiring state registry of persons
precluded firearms' possession due to mental condition;
authorizing reporting of information to national registry;
limitations on use of information; and establishing a
procedure for petitioning to regain right to possess a
firearm
.
Be it enacted by the Legislature of West Virginia:
That §27-3-1
of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §61-7-7
of said code be amended and
reenacted; and that said code be amended by adding thereto a new
article, designated §61-7A-1, §61-7A-2, §61-7A-3, §61-7A-4 and §61-
7A-5
,
all to read as follows:
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 3. CONFIDENTIALITY.
§27-3-1. Definition of confidential information; disclosure.
(a) Communications and information obtained in the course of
treatment or evaluation of any client or patient are confidential
information. Such confidential information includes the fact that
a person is or has been a client or patient, information
transmitted by a patient or client or family thereof for purposes
relating to diagnosis or treatment, information transmitted by
persons participating in the accomplishment of the objectives of
diagnosis or treatment, all diagnoses or opinions formed regarding
a client's or patient's physical, mental or emotional condition,
any advice, instructions or prescriptions issued in the course of
diagnosis or treatment, and any record or characterization of the
matters hereinbefore described. It does not include information
which does not identify a client or patient, information from which
a person acquainted with a client or patient would not recognize
such client or patient and uncoded information from which there is
no possible means to identify a client or patient.
(b) Confidential information shall not be disclosed, except:
(1) In a proceeding under section four, article five of this
chapter to disclose the results of an involuntary examination made
pursuant to section two, three or four of said article;
(2) In a proceeding under article six-a of this chapter to
disclose the results of an involuntary examination made pursuant
thereto;
(3) Pursuant to an order of any court based upon a finding
that the information is sufficiently relevant to a proceeding
before the court to outweigh the importance of maintaining the
confidentiality established by this section;
(4) To provide notice to the federal National Instant Criminal
Background Check System, established pursuant to section 103(d) of
the Brady Handgun Violence Prevention Act, 18 U. S. C.§922, in
accordance with article seven-a, chapter sixty-one of this code;
(5) To protect against a clear and substantial danger of
imminent injury by a patient or client to himself, herself or
another;
(6) For treatment or internal review purposes, to staff of the
mental health facility where the patient is being cared for or to
other health professionals involved in treatment of the patient;
and
(7) Without the patient's consent as provided for under the
Privacy Rule of the federal Health Insurance Portability and
Accountability Act of 1996, 45 C. F. R. §164.506, for thirty
days from the date of admission to a mental health facility if: (i)
The provider makes a good faith effort to obtain consent from the patient or legal representative prior to disclosure; (ii) the
minimum information necessary is released for a specifically stated
purpose; and (iii) prompt notice of the disclosure, the recipient
of the information and the purpose of the disclosure is given to
the patient or legal representative.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-7. Persons prohibited from possessing firearms;
classifications; reinstatement of rights to possess;
offenses; penalties.
(a) Except as provided in this section, no person shall
possess a firearm, as such is defined in section two of this
article, who:
(1) Has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year;
(2) Is habitually addicted to alcohol;
(3) Is an unlawful user of or habitually addicted to any
controlled substance;
(4) Has been adjudicated as a mental defective or who has been
involuntarily committed to a mental institution pursuant to the
provisions of chapter twenty-seven of this code: Provided, That
once an individual has been adjudicated as a mental defective or
involuntarily committed to a mental institution, he or she shall be
duly notified that they are to immediately surrender any firearms
in their ownership or possession: Provided, however, That the mental hygiene commissioner or circuit judge shall first make a
determination of the appropriate public or private individual or
entity to act as conservator for the surrendered property;
(5) Is an alien illegally or unlawfully in the United States;
(6) Has been discharged from the armed forces under
dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received
actual notice and at which such person had an opportunity to
participate;
(B) Restrains such person from harassing, stalking or
threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that would
place an intimate partner in reasonable fear of bodily injury to
the partner or child; and
(C)(i) Includes a finding that such person represents a
credible threat to the physical safety of such intimate partner or
child; or
(ii) By its terms explicitly prohibits the use, attempted use
or threatened use of physical force against such intimate partner
or child that would reasonably be expected to cause bodily injury;
or
(8) Has been convicted of a misdemeanor offense of assault or
battery either under the provisions of section twenty-eight,
article two of this chapter or the provisions of subsection (b) or
(c), section nine of said article in which the victim was a current or former spouse, current or former sexual or intimate partner,
person with whom the defendant has a child in common, person with
whom the defendant cohabits or has cohabited, a parent or guardian,
the defendant's child or ward or a member of the defendant's
household at the time of the offense or has been convicted in any
court of any jurisdiction of a comparable misdemeanor crime of
domestic violence.
Any person who violates the provisions of this subsection
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one
thousand dollars or confined in the county jail for not less than
ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this
section, any person:
(1) Who has been convicted in this state or any other
jurisdiction of a felony crime of violence against the person of
another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other
jurisdiction of a felony controlled substance offense involving a
Schedule I controlled substance other than marijuana, a Schedule II
or a Schedule III controlled substance as such are defined in
sections two hundred four, two hundred five and two hundred six,
article two, chapter sixty-a of this code and who possesses a
firearm as such is defined in section two of this article shall be
guilty of a felony and, upon conviction thereof, shall be confined
in a state correctional facility for not more than five years or fined not more than five thousand dollars, or both. The provisions
of subsection (c) of this section shall not apply to persons
convicted of offenses referred to in this subsection or to persons
convicted of a violation of this subsection.
(c) Any person prohibited from possessing a firearm by the
provisions of subsection (a) of this section may petition the
circuit court of the county in which he or she resides to regain
the ability to possess a firearm and if the court finds by clear
and convincing evidence that the person is competent and capable of
exercising the responsibility concomitant with the possession of a
firearm, the court may enter an order allowing the person to
possess a firearm if such possession would not violate any federal
law:
Provided, That a person prohibited from possessing a firearm
by the provisions of subdivision (4), subsection (a) of this
section may petition to regain the ability to possess a firearm in
accordance with the provisions of section five, article seven-a of
this chapter.
ARTICLE 7A.
STATE MENTAL HEALTH REGISTRY; REPORTING OF PERSONS
PROSCRIBED FROM FIREARM POSSESSION DUE TO MENTAL
CONDITION TO THE NATIONAL INSTANT CRIMINAL BACKGROUND
CHECK SYSTEM; LEGISLATIVE FINDINGS; DEFINITIONS;
REPORTING REQUIREMENTS; REINSTATEMENT OF RIGHTS
PROCEDURES.
§61-7A-1. Legislative intent.
It is the intention of the Legislature in the enactment of this article to clarify the persons whom it intends to proscribe
from the possession of firearms due to substance abuse or mental
illness; establish a process in reporting the names of persons
proscribed from possession of firearms due to mental illness to the
central state mental health registry; authorize reporting by
registry to the National Instant Criminal Background Check System;
and to prescribe a means for reinstating one's ability to lawfully
possess a firearm.
§61-7A-2. Definitions.
As used in this article and as the terms are deemed to mean in
18 U. S. C. §922(g) and section seven, article seven of this
chapter as each exists as of the thirty-first day of January, two
thousand eight:
(1)"A person adjudicated as a mental defective" means a
person who has been determined by a duly authorized court,
tribunal, board or other entity to be mentally ill to the point
where he or she has been found to be incompetent to stand trial due
to mental illness or insanity, has been found not guilty in a
criminal proceeding by reason of mental illness or insanity or has
been determined to be unable to handle his or her own affairs due
to mental illness or insanity.
(2)"Committed to a mental institution" means to have been
involuntarily committed for treatment pursuant to the provisions of
chapter twenty-seven of this code.
(3)"Mental institution" means any facility or part of a
facility used for the treatment of persons committed for treatment of mental illness or addiction.
§61-7A-3.
Persons whose names are to be supplied to the central
state mental health registry.
(a)The Superintendent of the West Virginia State Police and
the Secretary of the Department of Health and Human Resources, or
their designees, shall cooperate with the circuit clerk of each
county and Administrator of the West Virginia Supreme Court of
Appeals in compiling and maintaining a database containing the
names and identifying information of persons who have been
adjudicated to be mentally defective or who have been committed for
treatment of a mental illness pursuant to the provisions of chapter
twenty-seven of this code. The registry shall be maintained by the
Administrator of the Supreme Court of Appeals or the Superintendent
of the West Virginia State Police.
(b)The name of any person who has been adjudicated to be
mentally defective or who has been committed for treatment of a
mental illness pursuant to the provisions of chapter twenty-seven
of this code which shall be provided to the Superintendent of the
West Virginia State Police for inclusion in the central state
mental health registry. Upon receipt of the information being
received by the central state mental health registry it may be
transmitted to the National Instant Criminal Background Check
System and to county sheriffs;
(c)The Secretary of Department of Human Resources and the
circuit clerk of each county shall, as soon as practicable after
the effective date of this article, supply to the Superintendent of the West Virginia State Police for inclusion in the central state
mental health registry the name and identifying information
required by the provisions of subsection (d) of this section of all
persons covered by the provisions of this article and shall on an
ongoing basis continue to provide such information as it is
developed;
(d)The central state mental health registry shall contain
the name, address at the time of commitment or adjudication, date
of birth, date of commitment or adjudication and
of all persons who
have been adjudicated to be mentally defective or who have been
committed for treatment of a mental illness pursuant to the
provisions of chapter twenty-seven of this code
.
(e)The central state mental health registry shall provide
only such information about a person on the registry to county
sheriffs and the National Instant Criminal Background Check System
as is necessary to identify registrants; and
(f)On or before the first day of January, two thousand ten,
the central state mental health registry shall contain the name,
address at the time of commitment or adjudication, date of birth,
date of commitment or adjudication and any other identifying
characteristics
of all persons who have been adjudicated to be
mentally defective or who have been committed for treatment of a
mental illness pursuant to the provisions of chapter twenty-seven
of this code
. Under no circumstances shall the registry contain
information relating to any diagnosis or treatment provided.
§61-7A-4
. Confidentiality; limits on use of registry information.
(a)Notwithstanding any provision of this code to the
contrary, the Superintendent of the State Police, the Secretary of
the Department of Health and Human Resources and the circuit clerks
and the Administrator of the Supreme Court of Appeals may provide
notice to the central state mental health registry and the National
Instant Criminal Background Check System established pursuant to
Section 103(d) of the Brady Handgun Violence Protection Act, 18 U.
S. C.§922, that a person: (i) Has been involuntarily committed as
provided in chapter twenty-seven of this code; (ii) has been
adjudicated mentally incompetent in a proceeding under article six-
a of this chapter; or (iii) has regained the ability to possess a
firearm by order of a circuit court in a proceeding under section
five of this article.
(b)The information contained in the central state mental
health registry is to be used solely for the purpose of records
checks related to firearms purchases and for eligibility for a
state license or permit to possess or carry a concealed firearm.
(c)Whenever a person's name and other identifying
information has been added to the central state mental health
registry, a review of the state concealed handgun registry shall be
undertaken and if such review reveals that the person possesses a
current concealed handgun license, the sheriff of the county
issuing the concealed handgun license shall be informed of the
person's change in status.
§61-7A-5. Petition to regain right to possess firearms.
(a)Any person who is prohibited from possessing a firearm pursuant to the provisions of section seven, article seven of this
chapter or by provisions of federal law by virtue solely of having
previously been adjudicated to be mentally defective or to having
a prior involuntary commitment to a mental institution pursuant to
chapter twenty-seven of this code may petition the circuit court of
the county of his or her residence to regain the ability to
lawfully possess a firearm. If the court finds by clear and
convincing evidence that the person is competent and capable of
exercising the responsibilities concomitant with the possession of
a firearm, the court may enter an order allowing the petitioner to
possess a firearm.
(b)The circuit clerk of each county shall provide the
Superintendent of the West Virginia State Police or his or her
designee with a certified copy of any order entered pursuant to the
provisions of this section. If the order restores the petitioner's
ability to possess a firearm, petitioner's name shall be promptly
removed from the central state mental health registry and the
superintendent shall forthwith inform the Federal Bureau of
Investigation or other federal entity operating the National
Instant Criminal Background Check System of the court action.