S.Amdt. 4857

SA 4857. Mr. GRASSLEY (for himself and Mr. Isakson) submitted an
amendment intended to be proposed to amendment SA 4685 proposed by Mr.
Shelby (for himself and Ms. Mikulski) to the bill H.R. 2578, making
appropriations for the Departments of Commerce and Justice, Science,
and Related Agencies for the fiscal year ending September 30, 2016, and
for other purposes; which was ordered to lie on the table; as follows:

At the appropriate place in title V, insert the following:

SEC. 5__. ADDITIONAL PROTECTIONS FOR OUR VETERANS.

(a) In General.--Chapter 55 of title 38, United States
Code, is amended by adding at the end the following new
section:

``Sec. 5511. Conditions for treatment of certain persons as
adjudicated mentally incompetent for certain purposes

``(a) In General.--Beginning on the date of enactment of
this section, in any case arising out of the administration
by the Secretary of laws and benefits under this title, the
Secretary shall not determine a person to be adjudicated as a
mental defective under subsection (d)(4) or (g)(4) of section
922 of title 18 unless the Federal Government has met the
burden of proving, by clear and convincing evidence, that the
person is a danger to self or others. The process to
determine whether such person is a danger to self or others,
as set forth in this section, shall be separate from the
Department's process to determine a person mentally
incompetent for the purposes of assigning a fiduciary. A
person that is subject to the process that may result in a
finding that he or she is a danger to self or others shall be
provided formal notice and a process by which to challenge
the Federal Government's position, and shall be provided
written notice of the effect of the ruling with respect to
their ability to own and possess firearms and the protections
granted under this section.
``(b) Medical Review.--
``(1) In general.--The process by which a person may be
determined to be a danger to self or others shall be
initiated, with the exception of those persons described in
subsection (i)(1), only after 2 health care professionals of
the Department conclude, based on clear and convincing
medical evidence, that the person is a danger to self or
others.
``(2) Limitation.--If a conclusion by 2 health care
professionals of the Department that a person is a danger to
self or others is not made in accordance with paragraph (1) ,
the Federal Government may not begin the process to find that
such person is a danger to self or others.
``(c) Process.--If a conclusion that a person is a danger
to self or others is made under subsection (b)(1), not later
than 30 days after that date on which such conclusion is
made, the Department shall provide notice to the person, in
writing, of the medical finding, the rights and protections
afforded by this section, and the effect of a future
administrative or judicial ruling with respect to the ability
of the person to own and possess firearms.
``(d) Administrative Review.--(1) Except as provided in
subsection (i), not later than 60 days after the date on
which a person described in subsection (a) receives notice of
the pendency of the Federal Government action to determine
whether or not such person is a danger to self or others,
such person may request a review by the board designed or
established under paragraphs (2) and (3) or a court of
competent jurisdiction to determine whether such person is a
danger to self or others. If such person does not specify a
forum, the Federal Government shall choose the forum. In such
assessment, the board may consider the person's honorable
discharge or decoration and other mitigating factors.
``(2) Not later than 120 days after the date of enactment
of this section, the Secretary shall designate or establish a
board that shall, upon request of a person under subsection
(a), make a determination after both parties have presented
their case as to whether a person is a danger to self or
others. If the board determines that the Federal Government
failed to prove that the person is a danger to self or
others, the person shall not be required to present his or
her case.
``(3) The board shall consist of 3 former or current
Federal judicial officers for a term of two years each and a
majority decision shall control.
``(4) A determination by the board designated or
established under paragraphs (2) or by a court of competent
jurisdiction that a person does not meet the standard under
subsection (f) shall preclude the Secretary from reporting
such person to the National

[[Page S4555]]

Instant Criminal Background Check System for the purpose of
prohibiting the acquisition, receipt, transfer, shipment,
transportation, or possession of firearms or ammunition.
``(5) Not later than 90 days after the date on which the
person or Federal Government chooses the administrative
review process, the board shall make a determination. If the
board does not make a determination within the required 90-
day period, the Secretary shall not report the person to the
National Instant Criminal Background Check System for the
purpose of prohibiting the acquisition, receipt, transfer,
shipment, transportation, or possession of firearms or
ammunition.
``(e) Judicial Review.--Not later than 45 days after the
date on which an assessment of a person under subsection (d)
is made, such person or the Federal Government may file a
petition for judicial review of the board's determination
with a court of competent jurisdiction. Such court shall
review the case de novo.
``(f) Burden of Proof.--The burden of proof for all actions
arising under this section shall be on the Federal Government
to prove, based on clear and convincing evidence, that a
person is a danger to self or others and such burden shall be
met before the person may be adjudicated as a mental
defective under subsection (d)(4) or (g)(4) of section 922 of
title 18.
``(g) Emergency Order.--(1) In the case of a person who the
Secretary believes may be an imminent danger to self or
others, the Secretary may file an emergency petition in a
court of competent jurisdiction to seek a temporary order
prohibiting the acquisition, receipt, transfer, shipment,
transportation, or possession of firearms or ammunition, if
the Secretary has already transmitted the notification letter
described in subsection (c). The court in which such action
is filed may, if the court finds probable cause exists that a
person is an imminent danger to self or others, grant such
petition. The Secretary shall submit to the court the
information and documents, in unredacted form, that support
the Secretary's position.
``(2) Except as provided in paragraph (3), an emergency
order issued under this subsection shall expire on the
earlier of--
``(A) the date that is 90 days after the date on which the
order is issued; or
``(B) the date on which a determination is made by the
board established under subsection (d)(2) or a court of
competent jurisdiction as to whether the person is a danger
to self or others.
``(3) The court may, in its discretion, extend an order
issued under this subsection for a reasonable amount of time.
``(h) Regulatory Changes.--Consistent with the requirements
imposed under this section, the Secretary shall review all
relevant regulations and revise such regulations as
necessary.
``(i) Persons With Existing Records.--(1) For persons with
existing records in the National Instant Criminal Background
Check System database supplied by the Secretary as of the
date of enactment of this section, not later than 90 days
after such date of enactment, the Secretary shall provide
written notice of the opportunity for administrative review
or judicial review consistent with this section.
``(2) Each person described in paragraph (1) may, at any
time, request administrative review under subsection (d) or
judicial review by a court of competent jurisdiction to
challenge the placement of the person in the National Instant
Criminal Background Check System database consistent with the
procedures set forth in this section. If such person does not
specify a forum, the Federal Government shall choose the
forum. In such assessment, the board may consider the
person's honorable discharge or decoration and other
mitigating factors.
``(3) In an action under this subsection, the failure of
the Federal Government to prove, based on clear and
convincing evidence, that a person is a danger to self or
others consistent with the procedures in this section shall
result in the removal of such person's information from the
National Instant Criminal Background Check System database.
``(j) New and Material Evidence.--A person or the Federal
government may reopen a finally adjudicated case by
submitting new and material evidence consistent with this
section.
``(k) Court of Competent Jurisdiction Defined.--In this
section, the term `court of competent jurisdiction' means the
district court of the United States for the district in which
the person who is subject to the assessment or determination
lives.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 55 of such title is amended by adding at
the end the following new item:

``5511. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes.''.

(c) Applicability.--Section 5511 of title 38, United States
Code (as added by this section), shall apply, subject to the
aforementioned exceptions, with respect to all persons who
are determined by the Secretary of Veterans Affairs to be
mentally incompetent as of the date of enactment. After the
date of enactment of this Act, and separate from a finding of
mental incompetency, in any case arising out of the
administration by the Secretary of laws and benefits under
this title, for persons determined to be a danger to self or
others, such determination shall be made consistent with
section 5511 of title 38, United States Code (as added by
this Act).
(d) Rule of Construction.--Nothing in this section or the
amendments made by this section shall be construed to require
that the Secretary of Veterans Affairs first determine that a
person is mentally incompetent for purposes of assigning a
fiduciary before the Secretary may initiate the process to
determine whether a person is a danger to self or others,
consistent with section 5511 of title 38, United States Code,
as added by this section.
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