Johnson & Lagana Bill to Enhance Mental Health Record Expungement Process, Keep Guns from Mentally Unstable Clears Assembly Panel

(TRENTON) – Legislation sponsored by Assembly Democrats Gordon Johnson and Joseph Lagana to ensure individuals looking to have a mental health record expunged in order to be able to buy a handgun in New Jersey are well vetted was released Monday by an Assembly panel.

The bill (A-3593) would require certain law enforcement officials to be notified when a person applies to the court to have a mental health record expunged for the purposes of purchasing a firearm.

“Right now, the decision to expunge a person’s mental health record so that they are able to buy a gun rests in the hands of a judge, who may be unaware of any recent run-ins the person may have had with the law,” said Johnson (D-Bergen). “This can put the individual and public safety at risk. By involving law enforcement in the vetting process, we can help ensure that the individual who wants to purchase a gun is in good mental health and does not pose a danger to others.”

“We have seen the terrible things that can happen when a mentally unstable person gets a hold of a firearm,” said Lagana (D-Bergen/Passaic). “Law enforcement may be privy to information that could render a person ineligible for expungement, and hence unfit to carry a gun. In order to ensure the safety of the public, it makes sense to involve law enforcement when rendering these decisions.”

Under the bill, an individual looking to have a mental health record expunged in order to purchase a firearm would have to serve a copy of the expungement order to the following entities

  • if the petitioner is a resident of New Jersey, the Attorney General; the county prosecutor of the county where the petitioner was committed; the chief of police of the municipality where the petitioner resides, or the Superintendent of State Police if there is no police force; and the chief of police of the municipality where the petitioner resided at the time of commitment or the superintendent if there is no police force; or
  • if the petitioner is not a resident of New Jersey, the Attorney General of the state and the chief of police of the county or municipality where the petitioner currently resides.

Current law requires licensed firearms retailers to conduct a background check of prospective firearms purchasers using the National Instant Criminal Background Check System (NICS). A NICS check determines if the person is eligible to purchase a firearm under federal and state law. The Administrative Office of the Courts (AOC), in cooperation with the Attorney General and the State Police, has transmitted almost 425,000 records of mental health adjudications dating back to the 1970s to NICS. Individuals who were formerly committed to a mental institution, but have since recovered and want to purchase a firearm, may be found ineligible due to a mental health record in NICS.

To have a mental health record removed from NICS, a person must file an expungement application in the state that transmitted the record to NICS. In New Jersey, a person with a mental health record who has recovered, substantially improved, or in substantial remission, may apply to the court to have that record expunged. When considering an expungement application, the court must hear evidence as to the circumstances of the petitioner’s commitment or determination, the petitioner’s mental heath record and criminal history, and the petitioner’s reputation in the community. If the court finds the petitioner will not likely act in a manner dangerous to the public safety and that the grant of relief is not contrary to the public interest, the court is required to grant relief and expunge the record. The AOC and State Police provide for the record to be amended in NICS to reflect the expungement.

Law enforcement officials are currently not involved in the decision to expunge the mental health record of an individual who wants to buy a firearm. Since they may be aware of information not readily accessible to the court, like pending charges, the purchaser’s criminal history, or any aberrant behavior within the community, the bill would authorize law enforcement to be involved. Specifically, the bill would require a purchaser applying for expungement to serve notice to law enforcement officials in his or her current state of residence, if the reason for the expungement is to remove the mental health adjudication record from NICS to allow for the purchase of a firearm. Once served, law enforcement officials would have the discretion to provide information about the applicant’s criminal history or behavior for the court to consider during the expungement proceedings.

The bill was released by the Assembly Law and Public Safety Committee.