Recently, the Pennsylvania State Police (PSP) has decided to share civil mental health commitments, which include civil commitments under Section 302 and 303 of Pennsylvania’s Mental Health and Procedures Act (MHPA), with the Federal Bureau of Investigation.
This is a monumental change for Pennsylvania, which never used to share civil commitment records because of the privacy issues. Under the new direction, on Tuesday, January 29th, 2013, 643,167 mental health records were electronically transferred to the FBI’s National Instant Check System (NICS), according to Lt. Col. Scott Snyder, deputy commissioner for the state police. The PSP is also working on a system that will automatically upload any new records. Of the records submitted to the FBI NICS system, 70-75% of them were reportedly 302 commitments, which occur without ANY form of due process. A 302 commitment only requires a doctor’s signature and does not provide the individual with the ability to consult with counsel, cross-examine witnesses, offer witnesses and evidence, or even present the information to a neutral arbiter; yet, the individual loses his/her Second Amendment right to own, possess, or purchase a firearm or ammunition. This clearly violates all dictates of due process.
Interestingly, although the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) previously issued a determination that Pennsylvania’s MHPA Section 302 violated due process and was therefore not sufficient to trigger a federal disability, it later retracted that determination in approximately 2008; however, it appears that ATF/FBI is once again reconsidering whether PA’s MHPA violates due process. An unnamed spokeswoman for the ATF was reported to stated in an email that “ATF is reviewing whether Pennsylvania’s 302 commitment is a federal prohibition under” federal law.
It will surely be interesting to see whether the ATF issues a new determination that PA’s MHPA violates due process, as I have two cases up on appeal before the Superior Court arguing that it does violate due process.