In re Ray

          City and County of Denver Probate Court No. 15MH110 Honorable Elizabeth D. Leith, Judge

          Announced February 21, 2019 Glatstein & O'Brien, LLP, Jonathan B. Culwell, Denver, Colorado, for Petitioner-Appellant

          Kristin M. Bronson, City Attorney, Michael J. Stafford, Assistant City Attorney, Amy J. Packer, Assistant City Attorney, Denver, Colorado, for Respondent-Appellee People of the State of Colorado

          Philip J. Weiser, Attorney General, Emily B. Buckley, Assistant Attorney General, John A. Vanlandschoot, Assistant Attorney General, Denver, Colorado, for Respondents-Appellees Colorado Bureau of Investigation for the State of Colorado and Office of State Court Administrator for the State of Colorado

          OPINION

          BERGER, JUDGE

         I. Introduction and Summary

         ¶ 1 A physician certified Joshua J. Ray, Sr., for involuntary short- term mental health treatment under section 27-65-107, C.R.S. 2018. That certification caused Colorado officials to report Ray to the National Instant Criminal Background Check System (NICS) as a person subject to federal firearm prohibitions. Ray argues that because he was involuntarily certified by a physician, rather than a court, Colorado officials should not have reported his certification to the NICS.

         ¶ 2 The interplay between Colorado statutes and enforcement of the federal Brady Handgun Violence Prevention Act is complex. See 18 U.S.C. § 922 (2018); §§ 13-9-123, -124, C.R.S. 2018; § 24-33.5-424, C.R.S. 2018. The Brady Act prohibits certain categories of persons from possessing a firearm, including those who have been "committed to a mental institution." 18 U.S.C. § 922(g)(4). To effectuate these prohibitions, the Brady Act created a federally administered database of persons barred from possessing a firearm, the NICS. 34 U.S.C. § 40901 (2018).

         ¶ 3 Colorado law requires certain persons and entities to make NICS reports -- the State Court Administrator (SCA) must report to the Colorado Bureau of Investigation (CBI) the "name of each person with respect to whom the court has entered an order for involuntary certification for short-term treatment of a mental health disorder pursuant to section 27-65-107" so that those persons are listed in the NICS. § 13-9-123(1)(c) (emphasis added).^[1]

         ¶ 4 While the statutory scheme is complex, the only issue properly before us is simple: When a professional person certifies someone for involuntary short-term mental health treatment under section 27-65-107, is that certification the equivalent of a court order within the meaning of section 13-9-123(1)(c), thus requiring reporting to the NICS?

         ¶ 5 Our answer, which is "no," is equally simple. The plain meaning of the term court order simply cannot encompass a certification by a professional person.

         ¶ 6 Accordingly, we reverse the order the of the probate court and direct the probate court, SCA, and CBI, as applicable, to take reasonable steps to cause any record of Ray's certification submitted by them under section 13-9-123(1)(c) to be rescinded.

         II. Relevant Background and Procedural History

         ¶ 7 Ray voluntarily sought mental health treatment from a Denver hospital. After his admission, a physician certified him for involuntary mental health treatment under section 27-65-107, finding that Ray was a danger to himself or others and also finding that, absent such a certification, Ray would discontinue mental health treatment. After that certification was filed with the Denver Probate Court, as required by section 27-65-107(2), either the court clerk or the SCA notified the CBI of the certification and caused Ray's name to be included in the NICS.^[2]

         ¶ 8 The certifying physician terminated the mental health certification just days after it was entered, and Ray was discharged from the hospital. Ray alleges that, after his discharge, he contacted the federal government regarding his NICS status, and was ...