January 12, 2011

Federal Law Prohibits Sales Only to People Declared Unfit by Judge; States Slow to Update Database

By VANESSA O'CONNELL And GARY FIELDS

The Arizona shooting thrusts a spotlight on the difficulty states face keeping guns away from people struggling with mental-health issues.

Since 1968, federal law has prohibited the sale of guns to anyone declared mentally unfit. But first, a court has to decide someone is unfit—a very high standard. Then, the resident's state is supposed to supply the mental-health records to a Federal Bureau of Investigation database, created in 1998 to help carry out background checks of would-be gun buyers.

The trouble is, many states have been slow to submit records to the National Instant Criminal Background Check System. In a September study, the National Center for State Courts found there should be roughly twice as many mental-health records in the national database as there currently are, based on responses from 42 of 56 states and territories.

Additionally, a mentally ill person who has been banned from buying a weapon can circumvent the system by using an unlicensed dealer at a gun show, in his neighborhood or through classified ads, because no background check is required for such transactions.

The Arizona suspect, Jared Lee Loughner, didn't encounter any obstacles in buying a gun in the state. He was able to walk into a federally licensed gun retailer in November and legally buy the Glock 9mm semiautomatic pistol allegedly used in the attack that killed six people and injured 14 others in Tucson on Saturday.

Campus police at a community college had been notified of Mr. Loughner's disruptive behavior during classes, but he hadn't been under any court-ordered treatment.

A diagnosis mental illness by itself isn't enough to bar a gun purchase, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces gun laws. Voluntary commitments and mental-health assessments don't pass muster, either.

There is "nothing that we could do legally to prevent them from buying a gun if they weren't adjudicated mentally ill or involuntarily committed," according to an ATF official.

In the aftermath of the April 2007 massacre at Virginia Tech University by Seung-Hui Cho, a student who killed 32 people and himself, it emerged that he had been considered dangerous by a Virginia court and ordered into outpatient treatment, but the record was never sent to the background-check system. That omission allowed Mr. Cho to pass background checks on separate occasions.

Congress passed a law after that incident designed to strengthen efforts to keep dangerously mentally ill people from obtaining guns. The law aimed to bolster the background-check system, and to a degree, it has prompted more state filings into the database because there is now a financial incentive for states to do so. But critics say the slow passage of information to the federal level remains a big problem.

According to FBI data, there are 1.1 million people in the database who are prohibited from purchasing a firearm because of their mental-health status. Between November 30, 1998, and Dec. 31, 2010, only 6,103 attempted gun purchases at federally licensed dealers were stopped because of mental-illness prohibitions. That was just 0.74% of all NICS denials.

Over the same period, nearly 600,000 gun purchases were prevented because of criminal records, including misdemeanor crimes and domestic-violence convictions, representing about 73% of the NICS denials. The NICS data don't include sales between private individuals.

Unlike Arizona and most other states, California has specific additional mental-health restrictions on gun ownership, including a law requiring licensed psychotherapists to immediately report the identity of a person who has communicated a serious threat of physical violence.

Several other states, including New Jersey and Illinois, conduct investigations of individuals seeking gun licenses, and require disclosure of certain past mental-health treatment.

In New Jersey, applications for a permit must say whether the applicant is drug-dependent, or has ever been confined to a mental institution or hospital because of a psychiatric condition, according to an analysis by the National Rifle Association, the pro-gun lobby.

In Illinois, applicants are entitled to a state firearm-owner identification card only if they haven't been a patient in a mental hospital in the preceding five years, the NRA said.

So far, there has been little noticeable public debate following the Arizona killing spree about expanding the ranks of people prohibited from gun ownership under federal law because of mental illness.

Some fear that including an expansion of the record-keeping to include people getting treatment for mental-health problems might have a chilling effect on people coming forward for psychological treatment.

"If you move beyond an adjudication, what would the criteria then be?" said Ron Honberg, legal director for the National Alliance on Mental Illness, an organization representing individuals with mental illnesses and their families.

"To single out mental illness, and single out all people with mental illness, it's a slippery slope," Mr. Honberg said, noting that the overwhelming majority of people with mental illness are not violent.