Rule Text
A. Notice required. A person who is the subject of an order set forth in Paragraph B of this rule shall be given written notice of the following:
(1) The person is prohibited under federal law from receiving or possessing a firearm or ammunition as provided by 18 U.S.C. § 922(g)(4);
(2) The Administrative Office of the Courts is required under Section 34-9-19(B) NMSA 1978 to report information about the person’s identity to the Federal Bureau of Investigation for entry into the National Instant Criminal Background Check System; and
(3) The person may petition the court as provided in Section 34-9-19 NMSA 1978 to restore the person’s right to possess or receive a firearm or ammunition and to remove the person’s name from the National Instant Criminal Background Check System.
B. Orders requiring notice. The written notice required under Paragraph A of this rule shall be included in or made a part of the following orders:
(1) An order appointing a full or plenary guardian for an adult that includes a finding that the person is totally incapacitated under Section 45-5-304(C) NMSA 1978;
(2) An order appointing a full or plenary conservator for an adult that includes a finding that the person is totally incapacitated under Section 45-5-407(I) NMSA 1978;
(3) An order of commitment under Sections 43-1-11, -12, or -13 NMSA 1978;
(4) An order for involuntary protective services or protective placement under Section 27-7-26 NMSA 1978; and
(5) An order to participate in assisted outpatient treatment that includes a finding of serious violent behavior or of threatened or attempted serious physical harm under Section 43-1B-3(C)(2) NMSA 1978.
Amendment history: 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. 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.
Plain-English Summary (for reference only — not a substitute for the rule text above)
This summary is not the rule. The rule text controls.
If a court issues certain orders about a person's mental health or ability to care for themselves, that person must be told in writing that federal law now bans them from having a gun or ammunition. This notice explains three things: the firearm ban itself, the fact that the court system must report their information to the FBI for the national background check system, and their right to later ask the court to restore their gun rights and clear their name from that database.
This notice requirement applies to five specific types of court orders. These include orders naming a full guardian or conservator for an adult who the court finds is completely unable to care for themselves, orders committing someone for mental health treatment, orders requiring involuntary protective services or placement, and orders requiring outpatient treatment when the court finds the person has shown serious violent behavior or made serious threats of harm.
In plain terms, this rule makes sure people know their gun rights are affected before or when these court orders happen. It also tells them they are not stuck with this restriction forever. They have a legal path to ask the court to give back their right to own a firearm and to get their name removed from the background check system, if their situation changes later on.
Committee Notes
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.
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 types of orders in a civil proceeding that require the prescribed notice because the orders may include one or more findings that substantially align with the federal definition of “adjudicated as a mental defective” or “committed to a mental institution.” The orders listed in Subparagraphs (B)(3) and (4) necessarily include such a finding and therefore require notice in every case. However, the orders listed in Subparagraphs (B)(1), (2), and (5) may be issued without a finding or combination of findings that satisfies either definition. The rule therefore clarifies that notice is required under Subparagraphs (B)(1), (2), and (5) only when the order includes a specific finding that, taken with other findings that are statutorily required, ensures that the order substantially aligns with one of the federal definitions.
