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Official Opinion 96-5

Official Opinion 96-5

March 5, 1996
To: 

Director
Georgia Bureau of Investigation

Re: 

Official Code of Georgia Annotated ¿ 16-11-178 prohibits the receipt of a handgun by a person involuntarily hospitalized within the past five (5) years; that period of time is calculated from the person's release from hospitalization. Official Code of Georgia Annotated ¿ 35-3-34(d.1)(2) requires that judges of the probate courts and clerks of the superior courts advise the Bureau of all persons involuntarily hospitalized after March 22, 1995, the date the bill was signed by the Governor.

The Georgia Bureau of Investigation is charged, pursuant to 1995 Ga. Laws 139 (O.C.G.A. § 16-11-170 et seq.), with the duty to establish and operate a system by which, through the utilization of a computer data base, a licensed firearms dealer may obtain an instant background check on a potential purchaser of a handgun. In the process of establishing this system, two issues have been raised upon which you have requested my opinion.

First, O.C.G.A. § 16-11-178(b) prohibits the receipt of a handgun by a person involuntarily hospitalized within the past five years. You have asked whether the five-year period is to be calculated beginning upon the date of commitment or upon the person's discharge. It is my official opinion that the period begins upon discharge from hospitalization. The statutory definition of "involuntarily hospitalized," for the purposes of this statute, is a person hospitalized as an inpatient pursuant to O.C.G.A. § 37-3-81 or hospitalized as a result of being adjudicated incompetent to stand trial or adjudicated not guilty by reason of insanity. O.C.G.A. § 16-11-171(5).

The statute contemplates the protection of the public by denying those persons access to a handgun for a five-year period. Unless this period is computed from the person's discharge, the period of disqualification then becomes arbitrary, because it bears no rational relationship to the person's recovery. Indeed, it would be possible, if this period were to be computed from the date of commitment, for a currently hospitalized individual to qualify to receive a handgun, so long as the period of hospitalization began more than five years earlier. Such an absurd result is clearly not contemplated by either the General Assembly or by Congress when it enacted the "Brady Bill." Thus, it is my conclusion that this time period should be computed from the individual's discharge and that such a person is lawfully permitted to receive a handgun only after five years have passed from that date.

In your second question, you note that Section 7 of the bill (1995 Ga. Laws 139, § 7), not codified, provides that the bill is to become effective upon signature by the Governor, but is to apply only to the sale or transfer of handguns on and after January 1, 1996. Official Code of Georgia Annotated § 35-3-34(d.1)(2) requires judges of the probate courts and clerks of the superior courts to furnish information regarding persons involuntarily hospitalized, adjudicated incompetent to stand trial, or adjudicated not guilty by reason of insanity. You have asked whether such commitments and adjudications must be reported from March 22, 1995, when the bill was signed by the Governor, or only from January 1, 1996. It is my official opinion that all such commitments and adjudications occurring after March 22, 1995, must be so reported.

While 1995 Ga. Laws 139, § 7 provides that the bill applies only to sales or transfers of handguns beginning January 1, 1996, the bill as passed by the General Assembly otherwise provided that it was effective upon signature by the Governor. Official Code of Georgia Annotated § 35-3-34(d.1)(2) mandates that these reports be made regarding persons involuntarily hospitalized after the effective date of this subsection. Because the subsection became effective March 22, 1995, all involuntary hospitalizations after that date must be reported to the Bureau, even though the information is to be applied only to sales or transfers on and after January 1, 1996.

Prepared by:

NEAL B. CHILDERS
Senior Assistant Attorney General