New Hampshire: Court, attorney general spar over mental health records


CONCORD, N.H. >> New Hampshire's judicial and executive branches are locked in a conflict over whether the state has new authority to send mental health records to the federal gun background checks system.

Federal law bars people who have been committed to a mental health institution or deemed "mentally defective" from buying guns, but New Hampshire is one of the few states that does not submit those records to the National Instant Criminal Background Check System.

Attorney General Joe Foster, with the backing of Gov. Maggie Hassan, told the court system to start sending in those records last month, based on his reading of a little-noticed piece of law passed this year. But the court system says, not so fast.

The law "is not sufficiently clear on its face for the judicial branch to begin the reporting that you request," Howard Zibel, the court's general counsel, wrote to Foster last month. Zibel said the decision to deny the request was made by a panel of administrative judges. He said the AG's office can challenge that decision and seek a judicial ruling in court.

Hassan, a Democrat, is encouraging the AG's office to push back. The AG's office said Monday it is still determining how to respond and may file a court challenge.

"We have not made a decision about next steps," Deputy Attorney General Ann Rice said in an email Monday. Rice said options other than a court challenge "are not for public discussion at this point."

Both the AG's office and the court system said it is unusual for the two branches to come into conflict this way.

The spat centers on three lines inserted into a bill reauthorizing Medicaid expansion that passed in April. The language, drafted by Republican Rep. JR Hoell, says a person's name can't be submitted to NICS based on their mental health records "except pursuant to a court order issued following a hearing in which the person participated and was represented by an attorney."

Foster reads that as an authorization to begin sending records of people adjudicated as mentally ill to the system. But the American Civil Liberties Union, the Disability Rights Center and Hoell say the purpose was to keep records out of the system. The competing interpretations sparked the court's decision not to comply, Zibel wrote.

Hassan's spokesman, William Hinkle, said Hassan believes reporting mental health records is a "common-sense step to help prevent people who are a danger to themselves and others from purchasing firearms."

"She is confident that the Attorney General will thoroughly evaluate all options to allow him to report information to the background check system as was authorized by bipartisan legislation earlier this year," Hinkle said in a statement.


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