N.M. R. Crim. P. Dist. Ct. 5-615
N.M. R. Crim. P. Dist. Ct. 5-615
Committee commentary. - Enacted in 2016, NMSA 1978, Section 34-9-19(C) requires the Administrative Office of the Courts to notify a person who has been "adjudicated as a mental defective" or "committed to a mental institution" that the person "is disabled pursuant to federal law from receiving or possessing a firearm or ammunition." Federal law declares it a crime for a person who has been "adjudicated as a mental defective" or "committed to a mental institution" to, among other things, receive or possess a firearm or ammunition. See 18 U.S.C. § 922(g)(4) ("It shall be unlawful for any person . . . who has been adjudicated as a mental defective or who has been committed to a mental institution . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.").
The terms "adjudicated as a mental defective" and "committed to a mental institution" are defined under federal regulation and New Mexico law as follows:
Adjudicated as a mental defective.
(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.
(b) The term shall include-
(1) A finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.
Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution voluntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
27 C.F.R. § 478.11; NMSA 1978, § 34-9-19(M) ("[T]he terms 'adjudicated as a mental defective' and 'committed to a mental institution' have the same meaning as those terms are defined in federal regulations at 27 C.F.R. Section 478.11. . . .").
Paragraph A of this rule prescribes the notice that must be given under Section 34-9-19(C) to a person who has been "adjudicated as a mental defective" or "committed to a mental institution." See also Form 4-940 NMRA (Notice of federal restriction on right to possess or receive a firearm or ammunition). Paragraph B identifies the orders that require notice in a criminal proceeding because they presumptively meet the federal definition of "adjudicated as a mental defective" or "committed to a mental institution."
The requirements in Paragraph (B)(1) are intended to ensure that adequate due process protections are present before notice is provided and the person's identifying information is reported to the National Instant Criminal Background Check System (NICS). Accord, e.g., United States v. Rehlander, 666 F.3d 45, 48 (1st Cir. 2012) ("[T]he right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required."); Open Letter to the States' Attorneys General from the Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice (May 9, 2007), https://www.atf.gov/file/83751/download (explaining that the ATF historically has required "traditional protections of due process be present, including adequate notice, an opportunity to respond, and a right to counsel"); cf. 18 U.S.C. § 921(a)(33) (providing that "[a] person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence under § 922(g)(9) ], unless . . . the person was represented by counsel in the case . . . .").
The inclusion in Paragraph (B)(2)(a) of a finding of incompetency to stand trial is not free from doubt. The federal definition of "adjudicated as a mental defective" arguably is limited in Subsection (b)(2) to a finding of incompetent to stand trial in proceedings under the Uniform Code of Military Justice (UCMJ) and therefore may not apply to such a finding in a state criminal proceeding. However, the federal agency that promulgated the definition interprets Subsection (b)(2) as applying to findings of incompetency both in criminal cases and in proceedings under the UCMJ. See 79 Fed. Reg. 774, 777 (2014) (statement in proposed rule by the Bureau of Alcohol, Tobacco, Firearms, and Explosives). That interpretation is consistent with federal law that governs the reporting of information to the NICS. See NICS Improvement Amendments Act of 2007, Pub. L. 110-180, § 101(c)(1)(C), 121 Stat. 2559, 2562-63 (2008) (providing that no law shall prevent a federal department or agency from providing to the Attorney General any record that includes a finding of incompetent to stand trial "in any criminal case or under the Uniform Code of Military Justice" (emphasis added)).
Further, the standards for determining competency in a proceeding under the UCMJ and under New Mexico law in a criminal case are substantially the same. Compare 10 U.S.C. § 876b(a)(1) (requiring commitment to the Attorney General's custody of a person "presently suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature of the proceedings against that person or to conduct or cooperate intelligently in the defense of the case"); with, e.g., State v. Rotherham, 1996-NMSC-048, ¶ 12, 122 N.M. 246, 923 P.2d 1131 ("A person is competent to stand trial when he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and he has a rational as well as factual understanding of the proceedings against him. An accused must have the capacity to assist in his own defense and to comprehend the reasons for punishment." (internal quotation marks, alterations, and citations omitted)). Requiring notice for a finding of incompetency in a criminal proceeding, therefore, is consistent with the intent and scope of the federal definition, which is controlling under New Mexico law. See NMSA 1978, § 34-9-19(M).
[Provisionally approved by Supreme Court Order No. 16-8300-003, effective for all orders issued on or after May 18, 2016; Supreme Court Order No. 17-8300-003, withdrawing amendments provisionally approved by Supreme Court Order No. 16-8300-003, effective retroactively to May 18, 2016, and approving new amendments, effective for all orders filed on or after March 31, 2017.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-003, effective March 31, 2017, clarified the notice provisions for persons who are prohibited under federal law from receiving or possessing a firearm or ammunition as provided in 18 U.S.C. § 922(g)(4) to correspond with Section 34-9-19 NMSA 1978, clarified the types of orders that require the notice provided in Paragraph A to ensure that due process protections are present and to align with federal definitions, and revised the committee commentary; in Paragraph A, in the introductory sentence, deleted "The court shall provide written notice to a" and added "A", after "Paragraph B of this rule", deleted "that" and added "shall be given written notice of the following:"; added the subparagraph designation "(1)", in Subparagraph A(1), after "firearm or ammunition", added "as provided by 18 U.S.C. § 922(g)(4) ", added the subparagraph designation "(2)"; in Subparagraph A(2), after the subparagraph designation, deleted "The notice shall further state that" and added "The Administrative Office of the Courts is required under Section 34-9-19(B) NMSA 1978 to report information about", after "the person's", deleted "identifying information will be transmitted" and added "identity", and after "Criminal Background Check System", added "and" and added new Subparagraph A(3); in Paragraph B, in the introductory sentence, after "this rule shall be", deleted "in the form substantially approved by the Supreme Court and shall be attached to the following:" and added "included in or made a part of an order"; added new Subparagraph B(1) and redesignated former Subparagraphs B(1) and B(2) as Subparagraphs B(2)(a) and B(2)(b) respectively; in Subparagraph B(2), added "that finds defendant,"; in Subparagraph B(2)(a), deleted "An order finding a defendant", and after the semicolon, deleted "and" and added "or"; and in Subparagraph B(2)(b), after the subparagraph designation, deleted "An order finding a defendant".