'Incompetent to Stand Trial' & Reporting to NICS
This guest post does not necessarily represent the views of the Duke Center for Firearms Law.
Recently, the Texas State Auditor’s Office published its audit report A Review of Competency Restoration Services for Inmates in County Jails (November 2024) about problems in the county courts with defendants a court has ruled incompetent to stand trial. The focus of the audit, which was ordered by the state legislature, was on the significant backlogs or waiting lists for defendants seeking competency restoration so that they could proceed to trial or plea negotiations (see more coverage of the audit here). Near the end of the report, however, there is a discussion of a reporting disconnect between the courts and the National Instant Background Check System (NICS) for firearm purchases and permits. The report gives a peek under the hood, so to speak, of the bureaucratic regimes that feed inputs into the NICS system, which is informative for policy discussions about background checks and the federal law at issue in this report, 18 U.S.C. § 922(g)(4), which prohibits firearms possession for anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution.”
Of course, not all of these individuals pose any more danger to the community than other armed individuals do, though nearly all of them will have been convicted of a crime and have had at least a season of mental health problems serious enough to be deemed incompetent to stand trial. Regardless of the merits of §922(g)(4) as a policy or as an example of inartful legislative drafting, the law as it stands prohibits firearm possession for certain individuals. But the Texas audit shows how implementation and enforcement of the law can be thwarted by inadequate systems in local courthouses and state agencies.
Before discussing the findings in the new audit report, I want to provide a little background. Tens of thousands of criminal defendants nationwide are adjudicated to be “incompetent to stand trial” based on psychological evaluations and the defendant’s behavior in pretrial hearings. Generally, this means the defendant either cannot understand the nature of the charges or the proceeding, or would be unable to participate or cooperate with their lawyer in the case. The court then remits the defendant to treatment, often in a mental health facility. After some time, many, if not most, defendants have their competency restored and proceed to trial or plea negotiations.
Under §922(g)(4), these individuals are permanently ineligible to possess firearms, even after competency restoration and even if the individual is ultimately sentenced only to probation or a short prison sentence. If the person is later found in possession of a firearm, they can face prosecution and a new prison sentence. Gun charges after competency restoration were part of the facts in some pre-Bruen Second Amendment challenges, such as United States v. Collins and United States v. Bartley. In theory, an individual would still be a “prohibited person” under §922(g)(4) even if they were acquitted of the underlying criminal charges when they proceeded to trial after restoration of competency, because §922(g)(4) does not depend on a criminal conviction but only on a judicial finding of a mental impairment.
Perhaps surprisingly, no one really knows how many of these incompetency cases occur every year, or how many competency restorations occur, or how many individuals in the general population were at some point in their lives deemed incompetent to stand trial, at least temporarily. According to an article in the September 2024 online issue of the Journal of the American Academy of Psychiatry and the Law, there is currently no tracking system for cases involving competency to stand trial:
Despite the significance of [competency to stand trial, or CST] evaluations in U.S. criminal justice, the number of CST evaluations conducted across the country each year remains largely unknown. National estimates dating back to the 1970s have ranged from approximately 19,000 to 94,000 CST evaluations each year, but these numbers vary considerably and often stem from imprecise calculations.
A 2022 article on the website of the American Psychological Association describes systemic problems with competency rulings, and cites another academic article from 2022 showing that of those sent for competency evaluations, misdemeanor defendants were more likely than felony defendants (44%-31.2% respectively) to be found incompetent to stand trial. Many of those charged with misdemeanors (such as trespass when a person with temporary mental impairments is confused about where they are) will be ineligible for gun ownership for the rest of their lives, even though they are not convicted of a felony or a violent misdemeanor. (See also ATF regulations § 478.11(b)). Ideally, these individuals should be in the NICS database, but that depends on reporting and inputs, which brings us to the recent audit in Texas.
The section of the recent Texas audit report that relates to reporting (pp. 41-43) observes that “Courts are not always reporting individuals found to be incompetent to the Department of Public Safety as required.” Texas Government Code § 411.0521 requires district and county clerk offices to report certain individuals determined to have mental impairments to the Texas Department of Public Safety within 30 days of specified court actions. This includes when a court “determines a person is incompetent to stand trial…” Another section of the Government Code, § 411.052, requires the Department of Public Safety to have a system for reporting “federal prohibited person information” to NICS, but the delineated categories pertain only to 18 U.S.C. §922 (g)(4).
The report explains, “Auditors compared the names of individuals on the Commission’s waitlist from September 1, 2018, through December 31, 2023, to the names of individuals reported to the Department under this statutory requirement.” Auditors found that courts had reported 57% (1105 individuals) of the individuals covered by the relevant Code sections, but they had not reported 43% (830 individuals). The auditors also noted:
Additionally, the Department [of Public Safety] stated that it has no processes to verify that the list of individuals reported by a county is complete and accurate. The Department explained that it has only two staff dedicated to managing the reporting process to the FBI, and it does not have access to the Commission’s waitlist to help validate whether all individuals have been reported.
The larger takeaway here is a lesson in how firearm policy is not only about constitutional rights or judicial interpretation of statutes. The policies also require effective bureaucratic systems for implementation. In this case, the state courts failed to report almost half of the names of those judged incompetent to stand trial to NICS. Two densely populated counties (Dallas and Bexar, which includes San Antonio) were responsible for a disproportionate number of these failures, and the footnotes explain what went wrong in each case. The Dallas County clerk’s office said they had changed to a new case management system in 2023, which may have caused a significant delay in reporting. The Bexar County Clerk’s Office claimed they were not aware of the reporting requirements. Presumably, these two outliers will rectify their problems, but the report highlights that something as simple as a new case management system or a breakdown in communication (or training employees) can substantially stymie the inputs to the NICS database. Even apart from these two counties, however, several other counties had dozens of names they had not reported – apparently due to incidental clerical error or neglect.
Another larger takeaway is that the middle link in the chain of reporting – the Department of Public Safety – had no system to verify whether they were receiving all the names, and that department has only two people working on the NICS reporting (for a state with a population of 31 million). It makes sense to have a central clearinghouse in a large state to gather all the data from local courthouses to ensure that the information is sent to NICS. Before the legislature adopted the system, it was up to each locale to send names to the FBI, and too many were simply not doing it. But a central clearinghouse for information can become a bottleneck if there is inadequate staffing or a lack of protocols for quality control.
The narrower takeaway is that 830 individuals did not have their names inputted into NICS, even though they are legally ineligible to possess firearms. Many, or perhaps most, of these individuals are not incarcerated, or will soon be released, given that (1) most individuals initially determined to be incompetent have their competency restored, and (2) given the studies cited above, the majority were probably charged with misdemeanors or low-grade felonies, in which case they would have received either short sentences or probation. On the one hand, these individuals (a few hundred) would be able to pass a background check to purchase firearms from a licensed dealer, despite being ineligible, if they are not in the NICS system, do not disclose their previous (temporary) adjudicated mental impairment on their NICS form, and do not have other disqualifying characteristics that were communicated to NICs such as a felony conviction or a domestic-violence misdemeanor conviction or restraining order. On the other hand, if they are caught at some point in possession of a firearm, they could be charged with unlawful possession under §922(g)(4), and would probably be charged with making a false statement on their NICS form as well.
In closing, I want to say a few words about the merits of § 922(g)(4) from a policy perspective. While I support the statute in its present form, I anticipate that a lifetime gun ban for those temporarily deemed incompetent to stand trial will seem unreasonable to some readers. I think a person’s perspective on this depends at least partly on underlying assumptions about the value or importance of gun ownership, as well as assumptions about the unavoidability of all statutes being both over-inclusive and under-inclusive to some extent. On the subject of § 922(g)(4), I recommend an oft-cited 2013 law review article by Fredrick E. Vars and Amanda Adcock Young. Although their article predates the Bruen decision and its reshaping of Second Amendment jurisprudence, it presents a thoughtful and even-handed discussion of § 922(g)(4)’s tradeoffs and how courts approached the provision in an era when they used a balancing test for such cases.
In addition, the question of whether § 922(g)(4) is good policy is separate from the question of who should change it if a change is warranted—that is, whether policy tradeoffs and statutory reform should be the domain of Congress or the courts. It is worth noting that Congress enacted this section of the 1968 Gun Control Act together with 18 U.S.C. § 925(c), which provided a way for individuals to petition the Attorney General for relief from their firearms ineligibility or “disability.” Since 1992, however, Congressional budget appropriations to ATF have included a rider that expressly forbids the Bureau from processing relief applications. Amending or revising § 922(g)(4) would require the full legislative enactment process, including committee review. In contrast, reviving the gun-rights restoration process under § 925(c) would, in theory, merely require omitting the rider from the annual budget. If a court were to tackle the perceived problems with the lifetime ban under § 922(g)(4), it could avoid reaching the constitutional issue with the ban itself and could focus instead on the legality of Congress using a budget rider to prevent the executive branch from implementing a properly enacted statute. (I am imagining something analogous to how the Supreme Court addressed prison overcrowding in Brown v. Plata). On the thorny issue of courts intervening when Congress makes substantive policy through appropriation riders, see here and here.