Mental health laws in the United States are all over the map, and there are certainly gaps in the system. We can expect a flurry of new legislation related to the recent Virginia Tech rampage killing by a student with a history of mental illness. In the past, similar flurries are usually related to isolated incidents of violence by mentally ill individuals using firearms. Of course the media is all over these stories, referring to them as "preventable tragedies," which inevitably leads to a public outcry. Without doubt the Virginia incident will prompt state and federal government to reassess current laws.
The purpose of this article is to provide law enforcement officers and agencies with an overview of the laws state by state. Do not rely solely on the information provided, as laws frequently change and some of the information provided is from the most recent compilations, one of which is five years old. While your duties are generally covered by your department's policies and procedures codes, know that those too are invariably out of date relative to mental health laws.
Table 1 State by State: Mental Health Firearm Laws, Access to Mental Health Database, Background Checks Performed By NICS
Jurisdiction
Related to Mental Illness
United States
United States Federal Gun Control Act, 18 U.S.C. § 922 1968 et seq.
Yes
Yes
N/A
N/A
Alabama
Ala Code § 13A-11-50 (2004), Criminal Code, Chapter 11, et seq.
Yes
No
NICS
No
Alaska
Alaska Stat § 11.61.190 (2004), et seq..; 18.65.710 et seq.
No
No
NICS
No
Arizona
Ariz Rev Stat Ann § 13.905 (2004),et seq.; 13-3101, et seq.
Yes
Yes
NICS
Yes
Arkansas
Ark Stat Ann § 5-73-103 (2003), et seq.
Yes
No
NICS
Yes
California
Cal Welf & Inst Code § 8100 (2004), et seq.
Yes
Yes
POC
Yes
Colorado
Col Rev Stat § 12-26.1-101 (2004), 18-12-101, et seq.; 24-33.5-424
No
No
POC
Yes
Connecticut
Conn Gen Stat § 29-27 (2003), et seq.; 53-20 class=GramE>,. et seq.; 53a-211,et seq.; 17a-500, et seq.
Yes
Yes
POC
No
Delaware
Del Code Ann title xi § 1441 (2004), et seq.; title xxii § 904A
Yes
Yes
NICS
No
D.C.
DC Code Ann § 22–4502 (2004), et seq.; 22-4505-4507
Yes
Yes
NICS
No
Florida
Fla Stat § 790.001 (2004), et seq; 493.6115 (2003)
Yes
No
POC
Yes
Georgia
Ga Code Ann § 16-11-123 (2004), et seq.; 16-11-174, et seq.
Yes
Yes
NICS
No
Hawaii
Haw Rev Stat § 134-1, et seq.
Yes
Yes
POC
No
Idaho
Idaho Code § 18-310 (2003); 18-3302 et seq.
Yes
No
NICS
No
Illinois
Ill Rev Stat 430:65 (2004), et seq.; 720:5/24-1, et seq; 725:5/112A-14
Yes
Yes
POC
No
Indiana
Ind Code Ann § 35-47-1-5 (2004) et seq.
Yes
No
NICS
No
Iowa
Iowa Code § 702.7 (2003), et seq.; 724.1, et seq.
Yes
No
Partial
Yes
Kansas
Kansas Stat Ann § 21:4201 (2003), et seq.; 75-7b17 et seq.
Yes
No
NICS
Yes
Kentucky
Ky Rev Stat Ann § 237.110 (2004), et seq.; 527.040, et seq.
Yes
No
NICS
Yes
Louisiana
La Rev Stat Ann §14:95 (2004), et seq.; § 40:1379.1, et seq.
Yes
No
NICS
No
Maine
Me Rev Stat Ann, title 15 § 393 (2003), et seq.; 17A.1052 et seq.
Yes
No
NICS
No
Maryland
Md Pub Safety Code 40:1379.1, et seq.
Yes
Yes
Partial
Yes
Massachusetts
Mass Gen L ch 140 § 129B (2004), et seq.; 269-10
Yes
Partial+
NICS
No
Michigan
Mich Comp Laws Ann § 28.422 (2004) et seq.; 750.222, et seq.
Yes
Yes
Partial
Yes
Minnesota
Minn Stat § 609.66 (2003), et seq.; 609.165, et seq.; 624.71 et seq.
Yes
Yes
NICS
No
Mississippi
Miss Code Ann § 45- 9-101 (2004), 97-37- 1, et seq.
Yes
Yes
NICS
No
Missouri
Mo Rev Stat § 471.090 (2004)
Yes
No
NICS
Yes
Montana
Mont Code Ann § 45-8-321 (2004)
Yes
No
NICS
No
Nebraska
Neb Rev Stat § 28-1201 (1991), et seq.; 69-2401, et seq.
No
Yes
Partial
No
Nevada
Nev Rev Stat § 202.253 (2004); et seq.; 202.360 et seq.
Yes
No
POC
No
New Hampshire
N H Rev Stat Ann § 159:1 (2004), et seq.
No
No
Partial
Yes
New Jersey
NJ Rev Stat § 2C:39- 1 (2004), et seq.; 2C:58–1, et seq.
Yes
Yes
POC
No
New Mexico
NM Stat Ann § 30-7- 2 (2004), et seq.
No
No
NICS
No
New York
NY Law Crim Proc § 265.00 (2004), et seq.; 400.00, et seq.
Yes
Yes
NICS
Yes
North Carolina
NC Gen Stat § 14- 269.7 (2004), et seq.; 14-402 et seq.
Yes
No
Partial
Yes
North Dakota
ND Cent Code § 62.1-01-01 (2004), et seq.
Yes
No
NICS
No
Ohio
Ohio Rev Code Ann§ 2923.11 (2004), et seq.
Yes
No
NICS
Yes
Oklahoma
Okla Stat title 21 § 1271.1 (2004), et seq.
Yes
No
NICS
No
Oregon
Or Rev Stat § 166.170 (2004), et seq.
Yes
Yes
POC
No
Pennsylvania
18 Pa Cons Stat § 6101 (2004), et seq.
Yes
Yes
POC
No
Rhode Island
RI Gen Laws § 11-47-2 (2004), et seq.
Yes
No
NICS
No
South Carolina
SC Codified Laws § 16-23-10 (2004), et seq.; 23-31-110, et seq.
Yes
No
NICS
Yes
South Dakota
SD Codified Laws § 16-23-19 (2004.), et seq; 23-31-110., et seq.
Yes
No
NICS
No
Tennessee
Tenn Penal Code Ann § 39-17-1301 (2004), et seq.
No
No
POC
Yes
Texas
Tex Penal Code Ann § 46.01 (2004) et seq.
Yes
No
NICS
No
Utah
Utah Code Ann § 53-5-704 (2004), et seq.; 76-10-501 (2004), et seq.
Yes
Yes
POC
Yes
Vermont
Vt Stat Ann § 13-4004, (2004) et seq.
No
No
NICS
No
Virginia
VA Code Ann §18.2-279 (2004), et seq.; 76-10-501, et seq.
Yes
Yes
POC
Yes
Washington
Wash Rev Code Ann § 9.41.010 (2004), et seq.
Yes
Yes
Partial
Yes
West Virginia
W Va Code § 61-7-2 (2004), et seq.
Yes
No
NICS
No
Wisconsin
Wis Stat § 175.30 (2003), et seq; 941.20, et seq.
Yes
Yes
Partial
No
Wyoming
Wyo Stat § 6-8-101 (2004), et seq.
Y
No
NICS
Yes
+ Only at state hospitals
Mental Health Laws and Databases
In 2005, Donna Norris, M.D. and her colleagues did an exhaustive study of state-by-state mental health gun laws and the states' ability to access mental health databases. 43 states and the District of Columbia had state laws prohibiting people with mental illness from obtaining firearms. In states with no specified restrictions, federal law governs.
There are many variations between the laws related to each state's definition of mental illness and restricted individuals. The laws prohibiting firearm purchase and possession also vary markedly in their restrictiveness. Several states also prohibit individuals who have been voluntarily admitted to a psychiatric hospital, and a few other states prohibit persons with certain mental health diagnoses from purchasing or possessing firearms. 20 states and D.C. had databases containing information on people with mental illness. Who actually has access to these databases and what information is contained also varies from state to state.
The recent public outcry has been to standardize firearm laws related to the mentally ill, as well as to create and/or improve upon access to databases related to a subject's mental health record. Concerns about such databases include breach of psychiatric confidentiality, which could hinder a patient's treatment, HIPAA violations, and the stigmatization (and in essence criminalization) of mentally ill individuals.
Presale Firearm Background Checks
There have been numerous attempts, some successful and others not, to provide uniform presale firearm background checks related to prohibited persons, and to allow sufficient time to complete such checks. Federal law firearm prohibitions include "anyone who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding 1 year, excluding crimes of imprisonment that are related to the regulation of business practices, anyone who is a fugitive from justice, anyone who is an unlawful user of or addicted to any controlled substance, anyone who has been adjudicated as a mental defective or has been committed to a mental institution, any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa, anyone who has been discharged from the U.S. Armed Forces under dishonorable conditions, anyone who, having been a citizen of the United States, has renounced his or her citizenship, anyone that is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner, anyone who has been convicted of a misdemeanor crime of domestic violence, and anyone who is under the age of 18 for a shotgun or rifle, or under age 21 for a handgun." (18 U.S.C. § 921 et seq.)
In 1993, the Brady Handgun Violence Prevention Act was signed into law. The act requires Federal Firearms Licensees (FFLs) to request background checks on individuals attempting to receive a firearm. The act went into effect in 1998 and required the U. S. Attorney General to establish the National Instant Criminal Background Check System (NICS). The NICS is managed by the FBI. The NICS allows any FFL access to immediate information as to whether the receipt of a firearm by a prospective transferee would violate federal law 18 U.S.C. § 922 (g) or (n) or state law. A 1997 Supreme Court ruling in Printz v. United States (95-1478), 521 U.S. 898 (1997) resulted in a decision that states cannot be mandated to conduct background checks by the NICS. The Our Lady of Peace Act, which passed in the House but failed in the Senate in 2002, was a recent attempt to mandate that departments or agencies report people prohibited from receipt of a firearm to the NICS. Currently, federal rules allow states, at any time, to designate an agency as a "point of contact" (POC) for conducting their own Brady Act-related background checks, or states may rely on the NICS to conduct the checks or may use the NICS as partial contact. .
As of May 2006, the FBI reports that a total of 29 states rely entirely on the FBI to conduct all Brady Act-related background checks. 13 states have agencies acting in a full point of contact capacity. Full POC states designate a local or state law enforcement authority to conduct the federally required background checks within state boundaries. Eight states participate as partial point of contact states. These states have agencies that conduct checks for handguns and/or handgun permits, while the FBI processes all long gun (i.e., rifles and shotguns) transactions. 23 states report at least some mental health records to the NICS, however, the confidentiality status and nature of this information is in question. Privacy laws and lack of technical ability prevent 27 states and D.C. from sharing mental health information with the NICS. Only 11 of the 28 NICS states (full and partial) provide any of this information to the FBI.
The act initially required purchasers to wait up to five days for a background check to complete before purchasing a handgun from a federal firearms licensee. The waiting period provision of the act expired in 1998 when the NICS came online.
Currently, a handgun purchaser may have to wait for up to three business days if the background check fails to immediately approve or deny his/her application to purchase a handgun. If the denial is not issued within those three days, the transfer may be completed at that time by default. This can be problematic, as some states update databases in real time, while other states can take up to a week. With this in mind, several states have increased their waiting periods to up to ten days. This act only relates to handguns, but there are states that also require background checks for the purchase of long guns as well. Additionally, the Brady Act only applies to FFLs. It does not affect private sellers. It is estimated that 40% of all firearm transactions are through private sellers.
Table 2 State by State: Court Ordered Outpatient Treatment (AOT), Tarasoff Statutes, and Mental Health Rankings
Jurisdiction
Assisted Outpatient Treatment
State Code Sections
Tarasoff-Like Statutes As of 2002
NAMI 2006 Grades
United States
No
N/A
Specific Persons**
D
Alabama
Yes
Ala. Code § 22-52-10.4; § 22-52-10.2
No Tarasoff Like Law
D
Alaska
Yes
Alaska Stat. ; § 47.30.755(a); §47.30.915(7);§47.30.915(10)
Permission To Warn
D
Arizona
Yes
Ariz. Rev. Stat. § 36-540(A);§ 36-501(5), (6), (16), (33)
Duty To Warn: Discretionary*
D+
Arkansas
Yes
Ark. Code Ann. § 20-47-207(c)
No Tarasoff Like Law
D-
California
+
Calif. Welf. & Inst. Code § 5250; § 5008(h)(1); § 5346(a)
Duty To Warn: Nondiscretionary*
C
Colorado
Yes
Colo. Rev. Stat. § 27-10-111(1); § 27-10-102(5)
Duty To Warn: Nondiscretionary*
U
Connecticut
No
Conn. Gen. Stat. Ann. § 17a-498(c); § 17a-495(a)
Permission To Warn
B
Delaware
Yes
Del. Code Ann. tit. 16, § 5001(6); tit. 16. § 5010
Duty To Warn: Discretionary*
C-
D.C.
Yes
D.C. Code Ann.§ 21-545(b)
Permission To Warn
C
Florida
Yes
Fla. Stat. Ann. § 394.467(1); § 394.4655(1)
Permission To Warn
C-
Georgia
Yes
Ga. Code Ann. § 37-3-1(9.1); § 37-3-1(12.1)
No Tarasoff Like Law
D
Hawaii
Yes
Haw. Rev. Stat.;§ 334-60.2; § 334-121; § 334-1
No Tarasoff Like Law
C
Idaho
Yes
Idaho Code § 66-329(k); § 66-317(k), (m) ; § 66-339A
Duty To Warn: Discretionary*
F
Illinois
Yes
405 Ill Comp. Stat.5/1-119
Permission To Warn
F
Indiana
Yes
Ind. Code Ann. § 12-7-2-53; § 12-7-2-96; § 12-26-7-5(a); § 12-26-14-1; § 12-26-6-8-(a);
Duty To Warn: Nondiscretionary
D-
Iowa
Yes
Iowa Code § 229.14; § 229.1(15)
No Tarasoff Like Law
F
Kansas
Yes
Kan. Stat. Ann. § 59-2946a(f)(1); § 59-2967(a)
No Tarasoff Like Law
F
Kentucky
Yes
Ky. Rev. Stat. Ann. § 202A.026; § 202A.011(2)
Duty To Warn: Nondiscretionary*
F
Louisiana
Yes
La. Rev. Stat. Ann. § 28:55(E)(1); § 28:2(3), (4), (10)
Duty To Warn: Discretionary*
D-
Maine
No
Me. Rev. Stat. Ann. tit. 34-B, § 3864(6)(A) 34B, § 3801(4)
No Tarasoff Like Law
B-
Maryland
No
Md. Code Ann., Health-Gen. § 10-632(e)(2)
Duty To Warn: Discretionary*
C+
Massachusetts
No
Mass. Gen. Laws Ann. ch. 123, § 8(a); ch. 123, § 1
Duty To Warn: Discretionary
C-
Michigan
Yes
Mich. Comp. Laws Ann. § 330.1401
Duty To Warn: Discretionary*
C+
Minnesota
Yes
Minn. Stat. Ann. § 253B.09(1); § 253B.02(13)(a), (17); § 253B.065(5)(b)
Duty To Warn: Nondiscretionary
C+
Mississippi
Yes
Miss. Code Ann. § 41-21-73(4); § 41-21-61(e)
Duty To Warn: Nondiscretionary
D
Missouri
Yes
Mo. Ann. Stat. § 632.335(4); § 632.005(9), § 632.350(5)
Duty To Warn: Discretionary
C-
Montana
Yes
Mont. Code Ann. § 53-21-126(1); § 53-21-127(7)
Duty To Warn: Nondiscretionary*
F
Nebraska
Yes
Neb. Rev. Stat. § 83-1037; § 83-1009
Duty To Warn: Nondiscretionary*
D
Nevada
No
Nev. Rev. Stat. § 433A.310(1); § 433A.115
No Tarasoff Like Law
D-
New Hampshire
Yes
N.H. Rev. Stat. Ann.§ 135-C:34; § 135-C:27
Duty To Warn: Nondiscretionary
D
New Jersey
No
N.J. Stat. Ann.§ 30:4-27.2(m), (r),(h),(i)
Duty To Warn: Discretionary
C
New Mexico
No
N.M. Stat. Ann. § 43-1-11(C); § 43-1-3(M), (N)
No Tarasoff Like Law
C-
New York
Yes
N.Y. Mental Hyg. Law § 9.31(c); § 9.01, § 9.60(C)
Permission To Warn
U
North Carolina
Yes
N.C. Gen. Stat. § 122C-268(j); §122C-3(11); § 122C-267(h); § 122C-263(d)(1); § 122C-271(a)
No Tarasoff Like Law
D+
North Dakota
Yes
N.D. Cent. Code § 25-03.1-07; § 25-03.1-02(12)
No Tarasoff Like Law
F
Ohio
Yes
Ohio Rev. Code Ann. § 5122.15(C); § 5122.01(B)
Duty To Warn: Discretionary*
B
Oklahoma
Yes
Okla. Stat. Ann. tit. 43A, § 1-103(13) a. tit. 43A, § 1-103(18)
Duty To Warn: Discretionary
D
Oregon
Yes
Or. Rev. Stat. § 426.005(1)(d)
Permission To Warn
C+
Pennsylvania
Yes
50 :State w:st="on">Pa. Cons. Stat. Ann. § 7301(A).; § 7304(f)
Duty To Warn: Discretionary
D+
Rhode Island
Yes
Permission To Warn
C
South Carolina
Yes
S.C. Code Ann. § 44-17-580; §44-23-10(1),(2)
Duty To Warn: Nondiscretionary
B-
South Dakota
Yes
S.D. Codified Laws § 27A-1-2; § 27A-1-1 (4), (5)
No Tarasoff Like Law
F
Tennessee
No
Tenn. Code Ann. § 33-6-501
Duty To Warn: Discretionary
C-
Texas
Yes
Tex. Health & Safety Code Ann. § 574.034; § 574.035 § 574.034; § 574.035
Permission To Warn
C
Utah
Yes
Utah Code Ann. § 62A-15-631 (10)62A-15-602 (12) 62A-15-602 (13)
Duty To Warn: Nondiscretionary*
D
Vermont
Yes
Vt. Stat. Ann. tit. 18, § 7611 tit. 18, § 7101(16) tit. 18, § 7101(17)
Duty To Warn: Discretionary
C-
Virginia
Yes
Va. Code Ann. § 37.2-817; § 37.2-817
Only if Involuntarily Hospitalized
D
Washington
Yes
Wash. Rev. Code Ann. § 71.05.240; § 71.05.020(19); § 71.05.020(14) ; § 71.05.020(16); § 71.05.020(32)
Duty To Warn: Nondiscretionary*
D
West Virginia
Yes
W.Va. Code §27-5-4(j); 27-1-12
Permission To Warn
D
Wisconsin
Yes
Wis. Stat. Ann. § 51.20(1)(a)1; § 51.20(1)(a)2
Duty To Warn: Unclear
B-
Wyoming
Yes
Wyo. Stat. Ann. § 25-10-110(j); § 25-10-101(a)(ix); § 25-10-101(a)(ii)§ 25-10-110(j)(ii)
No Tarasoff Like Law
D
*Duty to Warn: Discretionary: States that require law enforcement notification.
Court Ordered Assisted Outpatient Treatment
Statutes providing for Court Ordered Assisted Outpatient Treatment (AOT) may also be known as Kendra's Law, Kevin's Law, Laura's Law, etc. After several incidents that resulted in the death or serious harm of an individual by a mentally ill subject, many states established a procedure for obtaining court ordered assisted outpatient treatment for the severely mentally ill. The criterion for court ordered AOT are specific and comprehensive related to a mentally ill individual who presents as a substantial and ongoing risk to the safety of themselves or others and has a history of treatment noncompliance. 42 states and D.C. have implemented laws for court ordered assisted outpatient treatment. California allows for AOT by county; only Los Angeles has bought into it at this time. There are obvious advantages to court ordered assisted outpatient treatment. Specially, AOT criteria does not require a person to be an "imminent danger" to themselves or others, as does a petition for an involuntary inpatient commitment. It also allows for a person to be ordered to treatment to prevent a relapse that could result in the serious harm of the individual or others. Outpatient treatment is certainly less restrictive than inpatient for the individual. It also frees up frequently limited bed availability for individuals who present as a more imminent risk. However, AOT is only effective in preventing harm to self/others if there is consistent follow-up by the court and the mental health system.
Duty to Warn Laws
Background: In Berkeley, California in 1969, Prosenjit Poddar confided to Dr. Lawrence Moore his intent to kill Tatiana Tarasoff. Several months later, Poddar carried out his threat and killed Tarasoff. Neither Tatiana nor her parents received any warning of the threat. Tarasoff's parents then sued Moore.
Statutes based on the Tarasoff incident create exceptions to therapist-patient confidentiality. The "duty to warn" relates to a patient telling his/her therapist that he/she has plans to harm another. 13 states have laws addressing a mental health clinician's responsibility to warn the intended victim or law enforcement. The laws related to other states are frequently ambivalent. 27 states impose a "duty to warn" potential violence to a third party. 12 of these states make this duty nondiscretionary (not subject to the judgment of the therapist). 15 "duty to warn" states explicitly incorporate the therapist's judgment. Nine states and D.C. permit, but do not require, a therapist to breach confidentiality and warn the third party. 14 states require law enforcement notification. However, most prudent clinicians in duty states will contact the sheriff's or police department, largely to transfer some if not all of any civil liability in the worst case scenario situations (local governments tend to have deeper pockets). State laws certainly differ, but may require law enforcement officers to confiscate the individual's firearms and report to the DOJ.
Mental Health Systems
Perhaps the most important component to this whole mess is that the state mental health systems' ability to treat the most severely mentally ill is often dismal. The National Alliance for the Mentally Ill (NAMI) analyzed 48 states' adequacy related to mental health infrastructure, information access, services, and recovery support. For an overview of your state's grade related to the ability to treat the most seriously mentally ill and a discussion about the urgent needs of your state's system, see the link below. New York and Colorado did not respond to NAMI's request for information
This ultimately does become a law enforcement problem when an officer or deputy is trying to secure treatment for their jurisdiction's most seriously mentally citizens. It becomes a personal problem if you, a loved one, a friend or a peer is in need of mental health care.
Additional Information and Thoughts to Ponder
The association between violence and untreated psychiatric disorders has been established. Millions of Americans suffer from the severest forms of mental illness, schizophrenia and bipolar disorder, and studies estimate that about 50% of these individuals are not receiving treatment.
Since the mass closure of state hospitals decades ago, coupled with the deterioration of psychiatric services in most states, the most severely mentally ill are not being appropriately treated. The common denominator in one-half of all mass killings is that the killer has a severe psychiatric disorder that is not being treated. These individuals are usually well-known to the mental health system. Homicide is only one result of untreated mental illness. The mentally ill frequently complete suicide, are left homeless, are victimized, or are incarcerated when psychiatric treatment may have been a better solution.
Will changing mental health gun laws and making mental health databases accessible to law enforcement prevent the most severely untreated mentally ill from taking another person's life? Absolutely not. In this country, if you want a gun, you can get a gun. Those who believe otherwise are simply naïve. A mentally ill individual who is homicidal or suicidal doesn't really care (or sometimes even know) that they may be prohibited from buying or possessing a gun. If he/she cannot buy one from a FFL, there is always the private seller, a friend, or the tried and proven method of stealing a firearm. If someone is truly determined to kill themselves or others and cannot obtain a gun, they will use an alternative method to kill. That is not to say that legislation which is consistent and not a knee-jerk response could make an officer, the mentally ill individual, and others a little safer. Mental illness is indeed an illness and sufferers are entitled to reasonable level of confidentiality related to their disorders. Obviously, there is no quick fix solution to the disarray of current background check laws, confidentiality related to mental health databases, or the country's inability to provide adequate and appropriate treatment for the mentally ill population.