Authenticated PDF Version1.1 To establish rules and regulations for the Relief from Disabilities Board, a forum for persons subject to the disabilities of 18 U.S.C. §§922(d)(4) and (g)(4) and/or of 11 Del.C. §1448(a)(2) because of an adjudication or commitment to seek relief from a firearms prohibition.
1.2 To provide proper and adequate due process to those persons seeking relief from a firearms prohibition arising strictly from a disability under 18 U.S.C. §§ 922(d)(4) and (g)(4) and/or 11 Del.C. §1448(a)(2).
1.3 To allow for the expeditious modification or correction of a person's record who is no longer subject to a firearms prohibition under 18 U.S.C. §§ 922(d)(4) and (g)(4) and/or 11 Del.C. §1448(a)(2).
1.4 To ensure the confidentiality and security of records and data provided pursuant to 11 Del.C. §1448A.
2.1 Authority. These regulations are promulgated pursuant to 11 Del.C. §1448A(l). These regulations shall be known as "Regulations Governing the Relief from Disabilities Program and Use of Data Pursuant to 11 Del.C. §1448A".
2.2 Applicability. These regulations apply to persons who are prohibited from carrying, possessing, owning or transferring firearms as it relates to 18 U.S.C. §§ 922(d)(4) and (g)(4) and/or of 11 Del.C. §1448(a)(2) due to an adjudication or commitment to a hospital, mental institution or sanitarium as a result of a mental disorder.
"Adjudication or commitment to a hospital, mental institution or sanitarium as a result of a mental disorder" means a person admitted under a provisional admission by a psychiatrist or under a civil court order to the custody of the hospital for observation, diagnosis, care and treatment pursuant to 16 Del.C. Ch. 50. It does not include persons transported and held for mental health screening and assessment.
"Board" means the Relief from Disabilities Board hereby created by 11 Del.C. §1448A(k) and these regulations.
"Dangerous instrument" means any instrument, article or substance which is readily capable of cause death or serious physical injury as defined in 11 Del.C. §222(4).
"Deadly weapon" means any object which is or can be used, or attempted to be used, to cause death or serious physical injury as defined in 11 Del.C. §222(5).
"DELJIS" means the Delaware Criminal Justice Information System.
"Disability(ies)" means a prohibition from possessing, owning and/or transferring firearms as it relates to 11 Del.C. §1448(a)(2) and 18 U.S.C. §§ 922(d)(4) and (g)(4).
"DSCYFS" means the Department of Services for Children, Youth and Their Families.
"DHSS" means the Department of Health and Social Services.
"DSHS" means the Department of Safety and Homeland Security.
"Firearm" means any weapon as defined in 11 Del.C. §222(12).
"NICS" means National Instant Criminal Background Check System.
"Notice of De Novo Judicial Review" means written timely notice to the Superior Court and to the Board that a Petitioner, who has been denied relief after a hearing before the Relief from Disabilities Board, intends to appeal for a de novo review of the Board's decision by the Superior Court.
"Official record" means any and all documents, including but not limited to transcripts, evidence, testimony, etc., which has been submitted and presented to the Board for consideration during a hearing on a Petition for Relief.
"Person prohibited" means any person prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm within the State pursuant to 11 Del.C. §1448(a)(2) and 18 U.S.C. §§922(d)(4) and (g)(4).
4.0 Confidentiality and Security of Data.
4.1 The DHSS, DSHS, DSCYF and DELJIS shall adhere to 42 C.F.R. Part 2; 45 C.F.R. Parts 160, 162, and 164; and 16 Del.C. §1232 in protecting the confidentiality of protected patient health information in the use and discussion of protected patient health information and in the transmission of this information to the NICS database.
4.2 DELJIS shall adhere to 11 Del.C. Chapters 85 and 86 in protecting the confidentiality of criminal justice records and protected patient health information in the use of such information and in its transmission to the NICS database.
5.0 Relief from Disabilities Board
5.1.1 The Relief from Disabilities Board is hereby created to carry out the functions and duties pursuant to 11 Del.C. §1448A(k) and these regulations.
5.1.2 The Board is authorized to consider petitions for relief pursuant to 11 Del.C. §1448A(k) and these regulations arising from mental health adjudications or commitments which occur in the State of Delaware.
5.1.5 Service shall be considered complete upon receipt by the Chairperson, or by a person authorized by the Chairperson to accept service, of a Notice of De Novo Judicial Review and all documents as required by section 5.2.2 of these regulations.
5.1.7 The Board is not a designated agency pursuant to the Administrative Procedures Act and, therefore, shall be subject only to 29 Del.C. §10161(b).
5.1.8 The Board shall adhere to 42 C.F.R. Part 2; 45 C.F.R. Parts 160, 162, and 164; and 16 Del.C. §1232 in protecting the confidentiality of protected patient health information in the use and discussion of protected patient health information and in the transmission of this information to the NICS database.
5.1.9 Pursuant to 11 Del.C. §1448A(k), the Board shall be comprised of three (3) members, with the Chairperson appointed by and serving at the pleasure of the Secretary of Safety and Homeland Security and the remaining two (2) members appointed by and serving at the pleasure of the Secretary of the Department of Health and Social Services, one of whom shall be a Delaware licensed psychiatrist.
5.2.2 The petition shall contain, at a minimum, the following:
5.2.2.1 The Petitioner's name, address and telephone number;
5.2.2.2 The Petitioner's mental health record;
5.2.5 The Board shall consider evidence as specified in 11 Del.C. §§1448A(k)(2) and (3). In accordance with 11 Del.C. §1448A(k)(3), the Board may request that the petitioner undergo a clinical evaluation and risk assessment at the recommendation of the Board psychiatrist and if a majority of the Board agrees. The petitioner shall bear the costs of his or her clinical evaluation and/or risk assessment.
5.2.6 Relief shall be granted if the Board finds, by a preponderance of the evidence:
5.2.6.1 The Petitioner will not likely act in a manner dangerous to public safety; and,
5.2.6.2 Granting the relief will not be contrary to the public interest.
5.2.8 The decision of the Board shall be issued as soon as practicable following the hearing.
6.0 Modification of Petitioner's Record.
6.1 Upon notice that a petition for relief has been granted, the Department of Health and Social Services and the Department of Children, Youth and Their Families shall notify the Attorney General of the United States and shall update, correct, modify or remove from the database it maintains and makes available to NICS to reflect that the petitioner is no longer subject to a firearms prohibition as it relates to 11 Del.C. §1448(a)(2) and 18 U.S.C. §§ 922(d)(4) and (g)(4). Pursuant to 11 Del.C. §1448A(k)(7), DSHS shall be responsible for ensuring compliance with this regulation.
6.2 DELJIS shall also update, correct, modify or remove any reference to the petitioner's disability as it relates to 11 Del.C. §1448(a)(2) and 18 U.S.C. §§ 922(d)(4) and (g)(4) to reflect that the petitioner is no longer subject to a firearms prohibition under 11 Del.C. §1448(a)(2) and 18 U.S.C.§§ 922(d)(4) and (g)(4).
7.0 De Novo Judicial Review of the Decision of the Board.
7.5 Pursuant to 11 Del.C. §1448A(k), the Superior Court shall consider the record of the Board hearing on the petition for relief, the decision of the Board, and, at the Court's discretion, any additional evidence it deems necessary to conduct its review.
7.7 If the Superior Court grants Petitioner's Notice of De Novo Judicial Review, the Board shall, as soon as practicable, notify DELJIS, DSCYF and DHSS, which shall update, correct, modify or remove any references to the person's disability from any database maintained and made available to NICS to reflect that the petitioner is no longer a person prohibited from owning, possessing and/or transferring firearms as it relates to 11 Del.C. §1448(a)(2) and 18 U.S.C. §§ 922(d)(4) and (g)(4). In addition, DHSS shall notify the Attorney General of the United States that the Petitioner is no longer subject to a firearms prohibition pursuant to 11 Del.C. §1448(a)(2), 18 U.S.C. §§ 922(d)(4) and (g)(4). Pursuant to 11 Del.C. §1448A(k)(7), DSHS shall be responsible for ensuring compliance with this regulation.
