State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_122C > GS_122C-54_1

§ 122C‑54.1. Restoration process to remove mental commitment bar.

(a)        Any individual overthe age of 18 may petition for the removal of the mental commitment bar topurchase, possess, or transfer a firearm when the individual no longer suffersfrom the condition that resulted in the individual's involuntary commitment foreither inpatient or outpatient mental health treatment pursuant to Article 5 ofthis Chapter and no longer poses a danger to self or others for purposes of thepurchase, possession, or transfer of firearms pursuant to 18 U.S.C. § 922, G.S.14‑404, and G.S. 14‑415.12. The individual may file the petitionwith a district court judge upon the expiration of any current inpatient oroutpatient commitment. No individual who has been found not guilty by reason ofinsanity may petition a court for restoration under this section.

(b)        The petition mustbe filed in the district court of the county where the respondent was thesubject of the most recent judicial determination that either inpatient or outpatienttreatment was appropriate or in the district court of the county of thepetitioner's residence. An individual disqualified from firearms possession dueto a comparable out‑of‑State mental commitment shall makeapplication in the county of residence. The clerk of court upon receipt of thepetition shall schedule a hearing using the regularly scheduled commitmentcourt time and provide notice of the hearing to the petitioner and the districtattorney. Copies of the petition must be served on the director of theinpatient and outpatient treatment facility, in‑State or out‑of‑State,and the district attorney in the petitioner's current county of residence.

(c)        The burden is onthe petitioner to establish by a preponderance of the evidence that the petitionerno longer suffers from the condition that resulted in commitment and no longerposes a danger to self or others for purposes of the purchase, possession, ortransfer of firearms pursuant to 18 U.S.C. § 922, G.S. 14‑404, and G.S.14‑415.12. The district attorney shall present any and all relevantinformation to the contrary. For these purposes, the district attorney mayaccess and use any and all mental health records, juvenile records, andcriminal history of the petitioner wherever maintained. The applicant must signa release for the district attorney to receive any mental health records of theapplicant. This hearing shall be closed to the public, unless the court findsthat the public interest would be better served by conducting the hearing in public.If the court determines the hearing should be open to the public, upon motionby the petitioner, the court may allow for the in camera inspection of anymental health records. The court may allow the use of the record but shallrestrict it from public disclosure, unless it finds that the public interestwould be better served by making the record public. The district court shallenter an order that the petitioner does or does not continue to suffer from thecondition that resulted in commitment and does or does not continue to pose adanger to self or others for purposes of the purchase, possession, or transferof firearms pursuant to 18 U.S.C. § 922, G.S. 14‑404, and G.S. 14‑415.12.The court shall include in its order the specific findings of fact on which itbases its decision. The decision of the district court may be appealed to thesuperior court for a hearing de novo. After a denial by the superior court, theapplicant must wait a minimum of one year before reapplying. Attorneysdesignated by the Attorney General shall be available to represent the State,or assist in the representation of the State, in a restoration proceeding whenrequested to do so by a district attorney and approved by the Attorney General.An attorney so designated shall have all the powers of the district attorneyunder this section.

(d)        Upon a judicialdetermination to grant a petition under this section, the clerk of superiorcourt in the county where the petition was granted shall forward the order tothe National Instant Criminal Background Check System (NICS) for updating ofthe respondent's record.  (2008‑210, s. 2.)