N.Y. Comp. Codes R. & Regs. tit. 14 § 643.3

Current through Register Vol. 46, No. 51, December 18, 2024

Section 643.3 - Process

(a)Request for relief.

(1) An individual who has been or may be disqualified from attempting to purchase or otherwise possess a firearm in accordance with the provisions of section 13.09 (f) of the Mental Hygiene Law and whose records were submitted to NICS by OPWDD, may request administrative review by OPWDD to have his or her civil rights restored for such limited purpose.

(2) A request for relief shall be made on forms developed by OPWDD, which shall be available on OPWDD's public web site. At a minimum, the forms shall require the applicant to answer all of the following questions under penalty of perjury:

(i) Is the applicant under indictment for, or ever been convicted of, a crime punishable by imprisonment for more than one year?

(ii) Is the applicant a fugitive from justice?

(iii) Is the applicant an unlawful user of, or is addicted to, any controlled substance?

(iv) Has the applicant been adjudicated as having a mental disability or committed to a mental institution, including but not limited to involuntary commitment to an OPWDD facility (pursuant to article 15 of the Mental Hygiene Law, or article 730 or section 330.20 of the Criminal Procedure Law, or section 322.2 or 353.4 of the Family Court Act)? (Note: "adjudicated as having a mental disability" has the same meaning as the term "adjudicated as a mental defective" is defined in 27 C.F.R. 478.11. "Committed to a mental institution" has the same meaning as the term is defined in the cited Federal regulation.)

(v) Is the applicant an illegal alien, or has he/she been admitted to the United States under a nonimmigrant visa?

(vi) Was the applicant discharged from the U.S. Armed Forces under dishonorable conditions?

(vii) Has the applicant renounced U.S. citizenship?

(viii) Is the applicant subject or ever been subject to a court order restraining him or her from harassing, stalking, or threatening an intimate partner or child?

(ix) Has the applicant been convicted in any court of a misdemeanor crime of domestic violence?

(3) In addition to the forms provided, the applicant shall be required to submit further information in support of the request for relief. The information must include, but is not limited to:

(i) true and certified copies of medical/clinical records detailing the applicant's psychiatric and/or intellectual or developmental disability history, which shall include records pertaining to the involuntary commitment to an OPWDD facility, which is the subject of the request for relief;

(ii) true and certified copies of medical/clinical records from all of the applicant's current treatment and service providers, if the applicant is receiving treatment or services;

(iii) a true and certified copy of all criminal history information maintained on file at the New York State Division of Criminal Justice Services and the Federal Bureau of Investigation pertaining to the applicant, or a copy of a response from such division and bureau indicating that there is no criminal history information on file;

(iv) notarized letters of reference from current and past employers, family members or personal friends, which may include affidavits from character witnesses or the applicant, or other character evidence;

(v) any further information pertinent to the determination specifically requested by OPWDD. Such documents requested by OPWDD shall be certified copies of original documents.

(4) The applicant must provide a psychiatric evaluation performed no earlier than 90 calendar days from the date the request for relief was submitted to OPWDD, conducted by a qualified psychiatrist as defined in section 9.01 of the Mental Hygiene Law. The evaluation must include an opinion, and a basis for that opinion, as to whether or not the applicant's record and reputation are such that the applicant will or will not be likely to act in a manner dangerous to public safety and whether or not the granting of the relief to allow for firearms possession would be contrary to the public interest.

(5) The applicant must also provide an evaluation by a licensed psychologist which includes current IQ and adaptive behavior assessment.

(6) OPWDD reserves the right to request that the applicant undergo a clinical evaluation and risk assessment as determined by the commissioner or his/her designee(s). The evaluation must be performed 45 calendar days from the date OPWDD requests the evaluation, unless OPWDD allows an extension of time.

(7) The request for relief must include a valid authorization form permitting OPWDD to obtain and/or review health and other information from any health, mental health, alcohol/substance abuse providers, or providers of services for persons with developmental disabilities with respect to care and services provided prior to the date of the application, for the purposes of reviewing the application for relief. Such authorization must comply with applicable Federal or State laws governing the privacy of health information, including but not limited to, as relevant, 45 CFR parts 160 and 164, 42 CFR part 2, Public Health Law, section 17 and article 27-F, and Mental Hygiene Law, section 33.13.

(8) It is the responsibility of the applicant to ensure that all required information accompanies the request for relief at the time it is submitted to OPWDD. Unless specifically requested by OPWDD, information provided after receipt by OPWDD of the initial request for relief will not be considered. Information specifically requested by OPWDD must be received by OPWDD within 60 days of the date requested in order for it to be considered. Failure to meet this time frame will result in a denial of the certificate of relief.

(b)Scope of review.

(1) The commissioner or his/her designee(s) shall perform an administrative review of the request for relief, which shall include a review of all information submitted by the applicant in accordance with subdivision (a) of this section. The person(s) who conducts the review will not be the individual(s) who gathered the information for the administrative request for relief.

(2) Failure of the applicant to provide required or requested information may be the sole basis for denial of the certificate of relief.

(3) The scope of the review shall be to determine whether the applicant will not be likely to act in a manner dangerous to public safety and granting the relief will not be contrary to the public interest.

(c)Decision.

(1) After review of the application in accordance with subdivision (b) of this section, the commissioner or his/her designee(s) shall prepare a written determination, which shall include:

(i) a summary of the information utilized in reaching the decision;

(ii) a summary of the applicant's criminal history (if any);

(iii) a summary of the psychiatric evaluation prepared to support the request for relief;

(iv) a summary of the applicant's mental health and intellectual/developmental disabilities history;

(v) a summary of the circumstances surrounding the firearms disability imposed by 18 USC section 922(d)(4) and (g)(4);

(vi) an opinion as to whether or not the applicant's record and reputation are such that the applicant will or will not be likely to act in a manner dangerous to public safety and whether or not the granting of the relief would be contrary to the public interest; and

(vii) a determination as to whether or not the relief is granted.

(2) OPWDD shall provide a copy of the written determination to the applicant without undue delay. In addition to a copy of the written determination:

(i) if the relief is granted:

(a) the applicant must be provided with written notice that while the certificate of relief removes the disability from Federal firearms prohibitions (disabilities) imposed under 18 U.S.C. section 922(d)(4) and (g)(4), the determination does not otherwise qualify the applicant to purchase or possess a firearm, and does not fulfill the requirements of the background check pursuant to the Brady Handgun Violence Prevention Act of 1993 (Pub. L. 103-159), as amended; and

(b) OPWDD must notify NICS that the certificate of relief has been granted; or

(ii) if the relief is denied:

(a) the applicant must be notified of the right to have the decision reviewed in accordance with applicable State law; and

(b) OPWDD must further advise that the applicant cannot apply again for a request for relief until a year after the date of the written determination to deny the relief requested.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 643.3

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016