PRACTICE ADVISORY – Mental Health Commitments and Firearms

The following amendment to GL c. 123, §36C took effect on January 1, 2015

SECTION 16. Said chapter 123 is hereby further amended by adding the following section:-

Section 36C. (a) A court that orders the commitment of a person pursuant to sections 7, 8 or 18 or subsection (b) or (c) of section 16, shall transmit the person’s name and nonclinical, identifying information, including the person’s social security number and date of birth, to the department of criminal justice information services. The court shall notify the person that such person is prohibited from being issued a firearm identification card pursuant to section 129B of chapter 140 or a license to carry pursuant to sections 131 and 131F of said chapter 140 unless a petition for relief is subsequently granted pursuant to subsection (b).

(b) After 5 years from the date of commitment, a person committed pursuant to sections 7, 8 or 18 or subsection (b) or (c) of section 16 may file a petition for relief with the court that ordered the commitment requesting the court to restore the person’s ability to possess a firearm. The court may grant the relief sought in accordance with the principles of due process if the circumstances regarding the person’s disqualifying condition and the person’s record and reputation are determined to be such that: (i) the person is not likely to act in a manner that is dangerous to public safety; and (ii) the granting of relief would not be contrary to the public interest. In making the determination, the court may consider evidence from a licensed medical doctor or clinical psychologist that the person is no longer suffering from the disease or condition that caused the disability or that the disease or condition has been successfully treated for a period of 3 consecutive years.

(c) When the court grants a petition for relief pursuant to subsection (b), the clerk shall immediately forward a copy of the order for relief to the department of criminal justice information services.

(d) A person whose petition for relief is denied pursuant to subsection (b) may appeal to the appellate division of the district court for a de novo review of the denial.

See https://malegislature.gov/Laws/SessionLaws/Acts/2014/Chapter284

When representing a client in a section 12 capacity, in a civil commitment or other matters outlined in section 36C above, you should advise him or her of this change in the law. If your client tells you they have a firearm identification card or that they are licensed to carry a handgun or possess a firearm for employment (e.g., a police officer, a military reservist, etc.) or enjoyment, (e.g. hunting, target shooting, etc.) it will be important to advise them of these provisions. This is the case even if the client might wish to obtain a firearm identification card or license in the future. Such clients may wish to seek admission on a Conditional Voluntary basis, under c. 123, §§10 and 11, so as not to be impacted by these prohibitions. You should also alert your client to the effect of this amendment on their right to possess and/or be licensed for a firearm, should they be committed pursuant to sections 12 (e), 7, 8, 16 (b) or (c) and 18.