Senate Judiciary Committee

Matthew Schelzi  271-3266


HB 1711-FN, authorizing the state to report mental health data for firearms background check purposes and providing for processes for confiscation of firearms following certain mental health-related court proceedings and for relief from mental health-related firearms disabilities.

Hearing Date: April 16, 2024

Time Opened: 2:29 p.m. Time Closed: 4:40 p.m.

Members of the Committee Present: Senators Carson, Gannon, Abbas, Whitley and Chandley

Members of the Committee Absent: None

Bill Analysis: This bill authorizes the state to report mental health data for firearms background check purposes and provides for processes for the confiscation of firearms following certain mental health-related court proceedings and for relief from mental health-related firearms disabilities.

Sponsors:  

Rep. Roy


Rep. Stone


Rep. Meuse

Rep. Monteil







________________________________________________________________________________



Who supports the bill:  In total, 184 individuals signed in, in support of HB 1711-FN. The full sign in sheets are available upon request to the Legislative Aide, Matthew Schelzi.



Who opposes the bill:  In total, 212 individuals signed in, in opposition to HB 1711-FN. The full sign in sheets are available upon request to the Legislative Aide, Matthew Schelzi.



Who is neutral on the bill:  Erin Creegan (NHJB).



Summary of testimony presented:



Representative David Meuse introduced HB 1711-FN. He said this legislation is a somber reminder of the ongoing struggle of people coping with the effects of mental illness and the cost of legislative inaction. Similar legislation has been adopted in 47 other states. In 2016, the New Hampshire Supreme Court ruled that a newly enacted law that prohibited the state from sending mental health records to the FBI’s criminal background check system, in the absence of an in-person hearing, was unclear. They denied the request by the Attorney General’s Office that instructed sending these records to the database.

This bill is known as “Bradley’s Law” in memory of retired Police Chief Bradley Haas who was killed at New Hampshire Hospital. He noted the bill was carefully written with review and input from the Attorney General’s Office to ensure it complies with applicable state and federal laws. If they did not want to further stigmatize people in crisis, they needed to receive input from staff at New Hampshire Hospital and mental health advocates, including NAMI-NH, the NH Disability Rights Center, and the NH Psychiatric Society.

This bill has three major parts. First, it authorizes the NH Judicial Branch to be the single reporting entity to the FBI’s National Instant Criminal Background Checks System (NICS). It authorizes the courts to report people adjudicated in the court system under three separate circumstances: cases involving a non-emergency, involuntary mental commitment; a person accused of a crime is found not competent to stand trial and a court has found that their illness could make them a danger to themselves or others; and when a person has been found not guilty by reason of insanity. Only people whose cases have been adjudicated under procedural circumstances would be reported. The bill doesn’t sweep up everyone who has been treated with a mental illness. It was written so people who voluntarily seek treatment or who are involuntarily hospitalized for assessment for a temporary health crisis are not reported. There are privacy restrictions in place for the data. It would be limited to a name, Social Security number, birth date, and reason code. No additional treatment records or financial data could be shared.

The second major part of this bill outlines the process for proper notifications and due process that respects people who are under duress. A judge would have discretion to relinquish firearms and ammunition to law enforcement, transfer them to another person, or confiscate them no more than 48 hours after an order has been issued. The third major part of this bill is a process for restoring rights to people whose mental health improves. This gives a person a right to a hearing and legal representation within 60 days after a petition for relief has been filed. Also, an independent psychiatric evaluation would need to be completed. To ensure citizens have their rights restored, the bill will take effect only after the AG’s Office has received approval from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) or other agencies that are required under federal law. HB 1711-FN closes a critical public safety gap that may have already cost the life of a man who devoted his life to public service.

Senator Gannon said on page 2, section 3 they would have 48 hours to turn in their weapons, but if they are a danger shouldn’t it be immediate.

Rep. Meuse believed that would be at the discretion of the court.

Representative Cyril Aures said he was in danger of losing his Second Amendment rights. He said this is not a mental health bill, it is a red flag law. He said there are already approximately 32,000 firearm laws. He said what would have helped Bradley Haas would have been a bullet proof vest and a firearm.

Representative J.R. Hoell opposed to HB 1711-FN. He said the fact that the state may have disarmed Officer Haas is what should be looked at. Instead of addressing existing issues, this bill expands gun control. He said this bill makes criminals out of those with mental health issues; instead, they should be receiving the services and residential care they need. This bill would only have an effect on law-abiding citizens. This issue is about a narrow group of people who may have committed a crime, and they should be prosecuted for their crimes. The person who murdered Officer Haas had a long criminal history, yet he was never prosecuted for a felony level offense.

Senator Carson said if someone has broken the law with a firearm, they tend to plead down the gun charges. She asked if someone breaks the law using a weapon, they should be held accountable.

Rep. Hoell said if someone misuses a firearm to commit a crime, they should be held accountable. If someone has a long history of violating others, their past history should be looked at differently. A one-size-fits-all for not plea bargaining down would have unintended consequences.  

Representative Bob Lynn said this is the first firearm bill he supports. He said this bill is different than a red flag law. He said the difference is that a red flag law is designed to prevent a person from having a firearm. He said this bill allows firearms to be taken away, or not being able to buy a firearm, if a court has already made a determination by clear and convincing evidence that a person is dangerous or if they need to be involuntarily committed.

He addressed some technical concerns with the bill. On page 2, line 16 if a person who is found incompetent to stand trial is not eventually committed, then a “court may transmit that finding to the department of safety for entry into the NICS Indices.” He suggested the word “may” should be changed to “shall.” He said in the section dealing with relief from disabilities if the person is seeking to have their record expunged. The standard established is clear and convincing evidence on page 5, lines 3-10. He was not sure that it should be the standard for someone who wanted relief from disability. It would mean a court was satisfied with the preponderance of evidence that a person wasn’t dangerous, and they could say a person couldn’t get their firearms back.

Senator Abbas said on page 2, lines 13-16, RSA 159-F:2(b) was one of the reasons to invoke if a person is deemed incompetent or dangerous. In that scenario, he asked wouldn’t that be enough that they would be entered into NICS.

Rep. Lynn said this would deal with a situation where someone is found not competent to stand trial, and the court finds they are a danger to themselves, but they are not committed. If they are not committed, they should get their firearms back and courts should not have the discretion to not allow that to happen.

Sen. Abbas said on page 2, lines 19-20, it says “The court shall inquire of the person if he or she currently owns or has access to any firearms, and if so, where they are located. If the person answers affirmatively, the court shall inform the person that the court may order law enforcement to confiscate those firearms or ammunition.” He asked if having access to firearms was different than possession.

Rep. Lynn said that would be an appropriate circumstance where they should say “may.” If a person is found incompetent, and the court asks if a person has access to firearms, he asked if the other person should give up their firearms because they are committed. The court would have to fashion relief in that circumstance that they have to be secured, so someone does not have access to them.

Sen. Abbas asked if access is intended to mean possession.

Rep. Lynn said it could mean something more. It could be constructed possession meaning a person does not have firearms in their house, but they have them at someone else’s house.

Sen. Gannon asked why isn’t if they are a danger to themselves and others included in sections A and C on page 1, lines 24-26.

Rep. Lynn said it was a valid point.

Brendan Landi said he was a concerned citizen because he thinks this bill tries to go into a direction against firearm owners, whereas it should be more focused on providing mental health services. Passage of this bill could lead the state down a dark path similar to other states that have seen more crime, deaths, and injury.

Holly Stevens, NAMI, cautiously supported HB 1711-FN. They worked with the sponsors because they wanted to see protections in the bill that did not promote stigmas or discrimination and protected civil rights. She said the reporting is done by law enforcement and the Judicial Branch, not by providers. They wanted to ensure a person could petition for relief for any orders, and the removal of firearms was done in a safe manner. She said people on an IEA are going to be held for longer than 48 hours, so the person would be in the hospital when law enforcement officers went into the house to remove the guns. She said this bill is not just about homicides, but it is also about suicides. In New Hampshire, 88% of all gun deaths over the last few years have been suicides. 1 in 5 Americans have a diagnosed mental illness, which is why they wanted to ensure there were protections.

Sen. Gannon asked if she has data that shows this legislation would lower suicide.

Ms. Stevens said she does not have any data, but she could look into it.

Jay Simkin said this bill needs to be voted Inexpedient to Legislate. Article 6, Clause II of the U.S. Constitution empowers the federal government to disregard state decisions on many things. No state entity can compel the federal government to modify any state database. In 2004, the General Court of Massachusetts established the Firearms Licensing Review Board. In 2007, the federal government published the FLRB law. He said the idea that names can go into the federal databases, and they can come out, is fiction. In 2018, the federal government told Massachusetts that they did not have the capacity to lift a firearms disability.

Dr. John Hinck, NH Psychiatric Society and NH Medical Society, strongly supported HB 1711-FN. This bill will reduce the risk of suicide and homicide. He said the vast majority of those with mental illness are not a danger to themselves or others; however, there is a small group that has severe psychiatric symptoms, so they are at a higher risk to harm themselves or others. It is the highest risk individuals who should be prevented from purchasing or possessing firearms. Suicide and gun violence has become a public health crisis, and this bill will reduce suicides and homicides in New Hampshire.

Sen. Gannon asked if the person who murdered Bradley Haas was mentally ill, or if he would have been caught if this law were in place.  

Dr. Hinck said he was a former patient at the hospital.

Kathy Holmes said she believes this to be a red flag law. She said this bill is tailormade for communism. She said it comes down to men must be governed by God, or they will be governed by tyrants. She asked what doctor can judge whether a person is stable or not. She said she has had her guns taken away from her, and they had to go to the Supreme Court for restoration.

Samantha Swetter, NH Psychiatric Society, supported HB 1711-FN. She recounted her personal experience of the New Hampshire Hospital shooting. She said if this bill had existed, then maybe this tragedy would not have happened.

Kirk Beswick, President of New Hampshire Firearms Coalition, opposed to HB 1711-FN. He said this bill was unconstitutional and it infringed on the rights of law-abiding citizens. He noted you don’t need permission to exercise your First Amendment right. He said if this bill became law, veterans will be less likely to seek treatment because they could be red flagged in the system. He said this bill violated the Fourth Amendment and Sixth Amendment. He said the NICS system is not always reliable. He asked where the due process was because who would define what precluded a person from owning a gun.

Jeffrey Fetter, NH Medical Society and NH Psychiatric Society, supported HB 1711-FN. He said the tragedy at New Hampshire Hospital could have been prevented by this legislation. He said there will be enough psychiatrists available to do evaluations. He said this bill is not a criminalization of those suffering from mental illness. In New Hampshire, there is a conditional discharge mechanism, so a person could be released into the community without access to their firearms. He felt this was less restrictive than being institutionalized. The statistics show those with severe mental illness are more likely to be victims rather than perpetrators of violence. He noted a primary care physician can deny a person the right to drive if they have seizures because they have a duty to the public interest. He recognized firearms are meant for protection, but he was afraid of behavioral health crises mixed with firearms.

Sen. Gannon asked if the shooter had been adjudicated by a judge as dangerous, incompetent, or insane.

Mr. Fetter said that was his understanding, and it has been reported on by the press.

Brian Barry said the answer to the question on page 1, lines 26-28 can be found in RSA 135:34. No law would stop someone who is violent, homicidal, or suicidal. He said society has failed to help out those suffering from mental health crises. He said this bill is a slippery slope because we are adjudicating those who are mentally ill. This bill was crafted to help, but its execution has been poor. He asked if his rights are suspended, then why would his wife’s rights be suspended. On page 3, lines 21-23, he asked why a citizen needs permission from the courts to dispose of their own private property. He asked who is going to pay for a person to get their rights back when the government has initiated the taking away of those rights.

Erin Creegan, NH Judicial Branch, neutral on HB 1711-FN. She said the court has the ability to implement this bill because it uses current court processes. Involuntary admissions, for example, already have a well-defined process and attorneys are accustomed to representing those parties. The court will be reporting the probate court decision to NICS, which would be about 650 cases a year. Criminal dispositions would still be reported by the Department of Safety, which has a Criminal Records Unit. Ms. Creegan said in terms of efficiency, evaluations are currently paid for by the court. This is done in every other case by the Office of the Forensic Examiners in the Department of Corrections.

Sen. Abbas asked on page 5, lines 6-7, it says “the court shall, as soon as possible, request that the NICS entry be redacted and shall notify the United States Attorney General that the basis for the record being made available no longer applies.” That is the process the court will take to get someone out of NICS. He asked if there are any other situations where the court would contact NICS to have someone removed.

Ms. Creegan said the court does not have the ability to remove people from NICS. There is a specific procedure prescribed in the NICS Improvement Act of 2007 for when a state can remove mental health adjudications. This has been drafted with those legal requirements in mind, so a person would be removed if the process is satisfied.

Sen. Abbas asked if there are any disqualifications under federal law that the court system could remove someone from NICS. Once an entity has entered someone, it was his understanding that they have to take them out. If the Department of Safety does many of them, he asked if they would remove them.

Ms. Creegan said there is a requirement in the NICS Act that if a state board or commission enters a person, then they have to take them out. This has been seen with federal veterans’ affairs, and they are not taking people out timely. Generally, most federal disabilities cannot be removed unless relief is petitioned. In 1992, Congress determined it would not allow ATF to adjudicate individual petitioners; therefore, removal of NICS for other disabilities is difficult.

Sen. Abbas said on the first page it says, “the New Hampshire judicial branch and the department of safety are authorized to report to the National Instant Criminal Background Check System (NICS) records concerning persons who have been disqualified from possessing or receiving a firearm under 18 U.S.C. section 922(g)(4)”. In a latter section, it says only the court can take a person out. He asked if the Department of Safety made the entry, could the court take a person out.

Ms. Creegan said it was her understanding that the bill was fully complaint. The ATF certifies if they have the ability to view this as something that qualifies under federal law. This bill doesn’t become active until the ATF has approved.  

Kathleen Slover, Moms Demand Action, said that people in New Hampshire already think that they are reporting mentally ill individuals to NICS. She said private and public safety should co-exist, and one shouldn’t be sacrificed for the other. A year after Viriginia passed their bill, they were able to block over 300 gun sales.

James Gaffney said he finds this bill to be troubling for a lot of reasons. Nobody has asked why the Chief was not armed. At the end of the day, nothing will prevent a bad person from committing harm. He said the Legislature continues to pass laws with no sunset process or review process. People will be stripped of their rights without a way to restore them. If he was a bad person, he said he could do more damage with a vehicle than a firearm.

Kimberly Morin, President of Women’s Defense League, said this bill should be voted Inexpedient to Legislate. She said the only logical legislation that should have come from the tragedy at New Hampshire Hospital was to arm security guards. New Hampshire is consistently safe with low crime, especially low violent crime. She said we need more mental health facilities and more mental health support. She said this bill does nothing; instead, it is easier to discriminate against gun owners. If someone is violent, she asked why they are not in a mental health facility. She said they need to provide facilities that offer dignity and respect to individuals, so they can live happy and productive lives.

Kang Lu was opposed to HB 1711-FN because this type of legislation is written with willful and predatory foresight. This bill uses the mentally ill as a pretext to strip people of their liberties. He said the constitutionality will be construed by the Judicial Branch. He asked what would guarantee that HB 1711-FN does not become misapplied to achieve unconscionable means.

Penny Dean said if a person’s attorney has asked that their client be mentally evaluated by the Office of the Forensic Examiner, it’s simply a request. If they are found competent, it is not indicated. It is common for someone to be disabused of their firearm rights under bail orders. On page 1, lines 24-26, she said courts can find a person restorable after a year. If they’re restorable, she said they’re still being reported. In RSA 135:17, she said New Hampshire has been repeatedly sued for warehousing people in holding facilities before they can get a hearing. She said these people are reported to NICS, and they haven’t had a hearing. On page 2, line 14, she said there is false hope with the 90 days. On page 4, lines 29-31, it says “The independent psychiatrist shall provide the court with an opinion as to whether the person is disabled by a mental illness…” She said this mattered because a lot of mentally ill individuals are on Social Security disability. If a psychiatrist states they’re not disabled, their disability might be taken away. She said there are a lot of procedural problems.

Sen. Abbas said on page 1, lines 20-22, the court and the Department of Safety are authorized to enter someone into the NICS system. On page 5, it only says that the court can remove someone from NICS if their challenge is successful. If the Department of Safety enters someone into NICS, he asked if the courts would be able to remove that person.

Ms. Dean said she was unsure, but she said there are many inconsistencies within the bill. When a person who is improperly adjudicated, and they successfully go through the process, they could be denied when purchasing a gun. It could result in the court’s pointing at the Department of Safety and vice versa. Another problem is it would be bogged down with issues over separation of power because it says the New Hampshire Supreme Court can become a trial court. She asked if the Supreme Court had to remand it to the trial court to enter something into NICS, or do they have to report to the state police.

Sen. Abbas said a person needs to be deemed incompetent to stand trial and there’s a finding that they’re dangerous to themselves or others. He asked if those go hand in hand.

Ms. Dean said they’re often separate findings. Individuals, who are characterized as mentally ill, are only a danger to themselves. She asked at what point do doctor’s get to rule people’s lives. She said the people they should be protecting the most are going to be hurt the most.

Dr. Joe Hannon, Vice President of Gun Owners of NH, opposed to HB 1711-FN. He said this bill relies on the effectiveness of background checks. According to the ATF, 65% of trafficked firearms were from straw purchases, or stolen from dealers or private persons. In 2000, the ATF found that the most frequent trafficking was straw purchases where a person legally bought a weapon, and they gave or sold it to someone else. In 2016, the Department of Justice found that 75% of criminals in state and federal prisons who possessed a firearm acquired it through theft, the underground market, a family member or a friend, or as a gift. Less than 1% got their firearms from dealers or non-dealers. This bill makes people more vulnerable by limiting their right to self-defense because a doctor has determined they might hurt someone. Between 2012 and 2018, Viriginia reported a 58% increase in firearm deaths. If someone is married or cohabitating with someone else, a judge could deprive someone who doesn’t have a criminal history of their rights.

Sen. Abbas asked if the person in the New Hampshire Hospital shooting acquired his guns through a straw purchase.

Dr. Hannon said he was unsure. This bill is targeted towards firearms and that a person might be violent in the future.

Rep. Popovici-Muller said the death of Officer Haas was a tragedy, but he didn’t approve of it being used as a reason for this legislation. He said it is a narrowly defined red flag law, and it takes away an individual’s constitutional rights despite them not committing a crime. It could cost tens of thousands for a person to restore their rights. On page 5, lines 3-5, it seemed to strike the presumption of innocence because a judge must clear that a person is innocent. This bill has specific exceptions, and it will have to be expanded since there are loopholes.  

David Narby said he was opposed to the bill. He said it should be voted Inexpedient to Legislate for two reasons. First, there is no provision for false accusations. Second, this bill will prevent people who need mental health help from getting it.

Zandra Rice Hawkins, Director of Gun Sense NH, said there is evidence that reporting to NICS has reduced suicide rates. In March 2022, research found that states that added mental health records to NICS experienced a 3.3% to 4.3% decrease in firearm-related suicides or 702 suicides yearly. Advocates from disability rights or mental health organizations haven’t raised concerns. Currently, some individuals might be inappropriately denied firearm rights because there’s no qualifying relief from a disability program. This bill establishes a process that meets federal standards to restore rights. It is important to establish public safety protocols to help individuals from harming themselves or others.

Sen. Abbas asked on page 2, lines 30-37, if the three scenarios someone would be entered into NICS are consistent in the types of removals that other states have passed.

Ms. Rice Hawkins said absolutely.

Representative Terry Roy said there is an involuntary commitment statute in New Hampshire, so if someone is dangerous, they can be admitted. He said if the New Hampshire hospital shooter had been involuntarily committed, he should not have had a gun, but the state isn’t reporting it. He said this bill doesn’t take one person’s firearm rights away because their rights are already taken away when they are involuntarily committed by the court. Under federal law, they become a prohibited person. A person has the ability to get their rights back. He said the restoration language comes directly from the ATF. Numerous states have passed similar legislation, but they can’t remove a person’s name because they didn’t follow the process exactly. He said the NRA, as late as 2016, had been supportive of states reporting the names to NICS.

He noted there are three categories that will make someone a prohibited person: if a person is committed involuntarily or found not guilty by reason of insanity or incompetent to stand trial. He said all this bill does is recognize the federal statute, it doesn’t take rights away, and gives them a chance to get their rights back. He said NAMI thought it would be best to let the people be in the hospital when guns are taken, which is why there is the 48-hour waiting time. This is civil, it isn’t criminal. He said this law would make New Hampshire the 48th state to contribute to the NICS database. NICS is a repository of information, so you get out what you put in.

Sen. Gannon asked if a person should be able to get their gun back based on a preponderance of evidence.

Rep. Roy said he put in the standards as required by the ATF. If their standard says it has to have a hearing, he will defer to him to make it a preponderance of evidence. He said he put in a fail-safe. The ATF has to approve the law, so until they’ve approved it, then not one name will go on the list.

Sen. Abbas asked what would happen if the ATF changed their rules and this no longer became compliant with what they want on page 5, lines 19-23.

Rep. Roy said if another condition were added, the agreement would fall apart, and they would need to renegotiate the statute. The relief from disabilities has to be in state statute.

Sen. Abbas said the ATF rulemaking can be confusing and it can happen quickly.

Rep. Roy said he was suspicious the ATF could change their rules. If it’s changed, the state will stop reporting. He doesn’t know if there is language to include other than if the ATF changes the agreement, it would be null and void.  

Sen. Abbas asked if reasons of insanity are not reporting to NICS.

Rep. Roy said that he doesn’t believe it is reported. As far as he knew, courts are reporting restraining orders. He said they wanted to improve their NICS system, so people aren’t being infringed on. Since they aren’t in compliance, they have received zero federal money.

Sen. Abbas said there is the part where someone gets entered into the NICS and they’re taken out. He asked if those could be separated because his concern was that would not be compliant with the ATF.

Rep. Roy said the state would not be compliant with the NICS Improvement Act of 2007, which dictates funding that is dispersed.