Rules Should Have Barred Weapon Purchase (AP headline)


PDA






davec
April 20, 2007, 12:14 AM
http://www.journaltimes.com/articles/2007/04/19/ap/headlines/d8ok0pg80.txt

Rules Should Have Barred Weapon Purchase
By MATTHEW BARAKAT

McLEAN, Va. - A judge's ruling on Cho Seung-Hui's mental health should have barred him from purchasing the handguns he used in the Virginia Tech massacre, according to federal regulations. But it was unclear Thursday whether anybody had an obligation to inform federal authorities about Cho's mental status because of loopholes in the law that governs background checks.

Cho purchased two handguns in February and March, and was subject to federal and state background checks both times. The checks turned up no problems, despite a judge's ruling in December 2005 that Cho "presents an imminent danger to himself as a result of mental illness."

"On the face of it, he should have been blocked under federal law," said Denis Henigan, legal director of the Brady Center to Prevent Gun Violence.

The 23-year-old South Korean immigrant was evaluated by a psychiatric hospital after he was accused of stalking two women and photographing female students in class with his cell phone. His violence-filled writings were so disturbing that professors begged him to get counseling.

The language of the ruling by Special Justice Paul M. Barnett almost identically tracks federal regulations from the Bureau of Alcohol, Tobacco, Firearms and Explosives. Those rules bar the sale of guns to individuals who have been "adjudicated mentally defective."

The definition outlined in the regulations is "a determination by a court ... or other lawful authority that a person as a result of marked subnormal intelligence, or mental illness ... is a danger to himself or to others."

Virginia State Police send information on prohibited buyers to the federal government. They maintain that the sale was legal under state law and would have been barred only if the justice had committed Cho to a psychiatric hospital. Barnett ordered outpatient treatment instead.

The Virginia attorney general's office declined to discuss the application of gun laws to Cho's case. Barnett also declined to comment.

The state uses a slightly different standard than the federal government, barring sales to individuals who have been judged "mentally incapacitated."

George Burke, a spokesman for Democratic Rep. Carolyn McCarthy of New York, said millions of criminal and mental-health records are not accessible to the National Instant Criminal Background Check System, mostly because state and local governments lack the money to submit the records.

McCarthy has sponsored legislation since 2002 that would close loopholes in the national background check system for gun purchases.

Initially states were required to provide all relevant information to federal authorities when the instant background checks were enacted, but a U.S. Supreme Court ruling relieved them of that obligation.

"The law is very confused about this," said Richard Bonnie, a professor of law and psychiatry at the University of Virginia who heads a state commission on mental-health reform. "The source of the confusion is the relation between federal and state law."

Also Thursday, the owner of an Internet gun store based in Green Bay, Wis., told The Associated Press that Cho used his Web site to purchase one of the weapons used in the shootings. Cho paid $268 for the gun.

Eric Thompson, who runs http://www.thegunsource.com, said the Walther .22-caliber handgun was then shipped to a Virginia pawnbroker so Cho could pick it up.

Thompson said he had no idea his business was involved until he was contacted Tuesday by ATF agents.

"I just feel absolutely terrible that this tragedy even happened in the first place," he said.

Associated Press writers Matt Apuzzo in Blacksburg and Scott Bauer in Madison, Wis., contributed to this report.

A service of the Associated Press(AP)

If you enjoyed reading about "Rules Should Have Barred Weapon Purchase (AP headline)" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
mdao
April 20, 2007, 12:54 AM
Same subject, different writer.

http://www.msnbc.msn.com/id/18217741/site/newsweek/

Different sources too...

"On the face of it, he should have been blocked under federal law."

“I don’t think it could be any more clear cut. He was not eligible to buy those guns.”

Looks like a coordinated assault to spread misinformation by anti-gun organizations.

joab
April 20, 2007, 01:01 AM
Cho was ordered to undergo outpatient treatment he was not committed the judge apparently cleared him and did not adjudicate him mentally defective.
I don't think that it is loopholes in the law but loopholes in honest reporting

davec
April 20, 2007, 01:08 AM
a massive failure of the system, because as we now know after the fact he was batcrap insane.

If the system worked and he was tossed in the loony bin where he belong then he never would of cleared the NICS and never would of gotten the guns.

Maybe he would of broken out of his "shell" to find a black market gun dealer.
Maybe he would of made a Molotov cocktail and burned 2x as many people to death.

But we wouldn't be in the beginnings of the biggest 2nd amendment fight of the 21st century cause of this nutbag if that was the case.

Fact is he legally bought the guns, and thats a major sticking point for the masses who dont think about guns or rights on a regular basis.

Bartholomew Roberts
April 20, 2007, 01:23 AM
Cho was ordered to undergo outpatient treatment he was not committed the judge apparently cleared him and did not adjudicate him mentally defective.

No, the law (18 U.S.C. 922(g)) says "adjudicated mentally defective or involuntarily committed to a mental institution"

27 CFR 178.11 defines "adjudicated as mentally defective" as:
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.
(b) The term shall include--
(1) A finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles
50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.

According to ABC News, Cho was evaluated by a psychaitrist and the order for counseling included a finding that Cho was a danger to himself. Under federal law, Cho was prohibited because he had been adjudicated mentally defective, even though he had not been committed.

farmallmta
April 20, 2007, 01:24 AM
I'm not trying to go way off topic, but there's something I don't understand about the finding that sent Cho to the nuthouse and the finding that released him.

First, he was hauled in BECAUSE HE WAS STALKING TWO WOMEN, in addition to the report of gross instability from his English professor. He was NOT hauled in because he was suicidal. In fact, the release report specifically stated that he "expresses no suicidal ideation."

So what's with the finding, as checked on the commitment report that he "represents an imminent danger to himself" as well as the release report which repeats that very same thing?

He wasn't a danger to himself. He was a danger to others. Is this just another case of the "Authorities" wussing out because of civil rights concern over involuntary commitment?

And perhaps even further off topic, we had a notoriously insane bag lady living for many years on the streets here in my town (shopping cart full of trash and bags hanging off the sides, front, back), 8 heavy winter coats in summertime, diseased, eating out of dumpsters, being robbed and beat up by other drunk bums, etc. This went on for YEARS. Ever so often, the newspaper would run an article on her, commenting that it would be just a matter of time before she was seriously injured pushing her shopping cart down the middle of busy streets while talking to satellites.

The cops always said in the articles that they couldn't do anything about her "SINCE SHE REPRESENTS A DANGER ONLY TO HERSELF, AND THAT SHE REFUSES HELP OR VOLUNTARY TREATMENT.

Sure as hell, 2 months ago she got hit by a car while crossing a street without looking, both legs and hips broken, now she's near death and not expected to live. The hospital said she was in shockingly bad health and physical condition.

No Authority tried to do a damn thing to get this woman off the street, cleaned up, back into health, and onto some medications. Seems like the authorities use the "danger to self" when convenient so they don't have to address problems. And these are the very same AUTHORITIES the liberals want us to trust with our LIVES!? No thanks. I'll take Glock and Colt every time.

Sorry for the rant.

Ratzinger_p38
April 20, 2007, 01:43 AM
I am confused and scared where this could go. When I was younger I was on a couple of anti-depressents, but not courts or anything.

I am scared this will put me under the 'umbrella' of 'insane' or whatever.

Bartholomew Roberts
April 20, 2007, 01:52 AM
First, he was hauled in BECAUSE HE WAS STALKING TWO WOMEN, in addition to the report of gross instability from his English professor.

No, Cho was questioned by police because of the allegations of stalking. He was not sent to the judge because of this. Police ended up coming out twice to talk to him over different incidents.

He was NOT hauled in because he was suicidal. In fact, the release report specifically stated that he "expresses no suicidal ideation."

He told another student he was depressed and feeling suicidal and that student was concerned enough to contact university authorities. When police came out for the third time, they took him to the court. He was evaluated by a psychiatrist who found him a danger to himself and the Judge signed off on it. Also, I believe if you check the report you'll see it says that the psychologist reported that Cho denied suicidal ideation. That is different from saying there was no suicidal ideation.

I am scared this will put me under the 'umbrella' of 'insane' or whatever.

No, there has to be a court finding that you are mentally defective or you have to be committed involuntarily to a mental institution - and you can actually dodge the involuntarily commitment in a lot of cases if it is only for temporary observation or you agree to voluntarily commitment. Check out the earlier threads on this and there is an excellent link to an online law paper covering this section.

In this case, it looks like Virginia has a different definition of "adjudicated mentally defective" than the ATF regs, so they didn't report the decision. ATF says it will defer to the decision of states in the ABC News article - that could be bad for those of us who live in states where the definition is much looser.

joab
April 20, 2007, 02:02 AM
No, the law (18 U.S.C. 922(g)) says "adjudicated mentally defective or involuntarily committed to a mental institution"Does this equate to being adjudicated mentally defective. The police are saying that no laws were broken in purchasing the guns.

I am confused and scared where this could go. When I was younger I was on a couple of anti-depressents, but not courts or anythingIt bothers me too
Years ago when Welbutrin was being was first marketed as the stop smoking medication Zyban insurance would not cover it
But it would cover Welbutrin for depression.
I was instructed to tell my Doctor that I was depressed because I could not stop smoking.
I was warned that it would go on my "permanent record" but saw no problem, then

Bartholomew Roberts
April 20, 2007, 02:11 AM
Does this equate to being adjudicated mentally defective. The police are saying that no laws were broken in purchasing the guns.

The difference is in the ATF regulation that defines "adjudicated mentally defective" and the Virginia law. Under the ATF regulation, Cho has been adjudicated mentally defective and should not have been able to buy the pistol. Under Virginia law, Cho isn't adjudicated mentally defective unless he has been involuntarily committed to a mental institution. Being ordered to counseling or observation doesn't count.

According to the ABC News article I just read, ATF is taking the position that they will defer to the state regulation (which I guess they have to since they have no power to compel the state to report those records). This could be a double-edged sword though since that means that states could also define it more harshly than the federal law.

Apparently Virginia has tried in the past to redefine the state law to match the federal law; but the mental health profession has resisted the effort because they fear that it will stop people from seeking help.

joab
April 20, 2007, 09:59 AM
The difference is in the ATF regulation that defines "adjudicated mentally defective" and the Virginia lawSo are you saying that federal law was loopholed by state reporting regulations or that Virginia technically violated Fed regulations in their disqualifying practices

I'm not trying to be confrontational with you I'm really trying to figure this out

Master Blaster
April 20, 2007, 10:20 AM
There is a bit of distortion in the article that makes it sound like you can order a pistol over the internet have it mailed and just "go pick it up" at a pawn shop. The fact is that a background check was performed at the pawn shop just like any other legal sale.

The form Cho filled out 4473, has a question on it about being adjudicated mentally defective, and surprise he LIED about it, and Gasp thats a federal offense.

If there were no legal guns availible, perhaps he would have rented a truck, and bought some fertilizer and fuel oil or some legal welding supplies, or a couple tanks of propane for his grill, or 50 gallons of gasoline and killed 300 people instead of 32.

The fact is that you can't eliminate the risk of a nutjob killing a bunch of people by changing the gun laws.

He should have been committed to a mental institution by his family or by the judge since it was obvious he was very sick.

John Hicks
April 20, 2007, 10:22 AM
I think we'll see the law change in Virginia. Gun control doesn't fly here at the state level, but I would not be surprised for a more tightly bound rule as to who is mentally defective.

Of course that opens up the doors for abuse, but this is VA, not Illinois or NY. I think the background check system is good, but it's only as good as what's reported.

It's not like this guy was a model citizen that bought guns and snapped. He was throwing up red flags and flares all over the place. That's not slipping through the cracks, that's an overt failure.

Again, I hate advocating limiting anybody's right to a firearm, but we have to be the leaders in keeping guns out of nut-jobs' hands. Because if we don't, the Kennedys/Shumers/Feinsteins will -- and we will not like their methods.

Another "rumor" that's hit the media is that Cho was autistic. Yet another flag (if true). That by definition defines mental incompetence.

It just a mess.

mbt2001
April 20, 2007, 10:29 AM
I think THR has more members than the VPC....

RealGun
April 20, 2007, 10:50 AM
I would want to keep this question away from Senator Lautenberg, the one who jumps at any excuse to permanently restrict ones RKBA, most notably anyone subject to a restraining order, a restriction quietly inserted in conference (without debate) in the middle of the night.

John Hicks
April 20, 2007, 10:56 AM
Someone correct me if I'm wrong, but I though a restraining order already restricted you in VA?

Not a lawyer, so I may be incorrect here.

joab
April 20, 2007, 11:25 AM
The form Cho filled out 4473, has a question on it about being adjudicated mentally defective, and surprise he LIED about it, and Gasp thats a federal offense.But according to Va police no laws were broken in purchasing the guns

Someone correct me if I'm wrong, but I though a restraining order already restricted you in VAIt's a federal reg but there was no restraining order against him the girls declined to press the issue

TexasRifleman
April 20, 2007, 11:29 AM
He wasn't a danger to himself.


He shot himself.

If you have an explanation why that's not dangerous to one's self I'd REALLY like to hear it.

I think THR has more members than the VPC....

You mean THR has more VPC members posting than VPC's website I assume.......I think you are right.

VARifleman
April 20, 2007, 11:37 AM
But according to Va police no laws were broken in purchasing the guns

For VA law, which is what they are familiar with, that is correct. This is not true of federal law which has been mentioned in several threads including citing the law by B. Roberts and myself.

Bartholomew Roberts
April 20, 2007, 11:59 AM
So are you saying that federal law was loopholed by state reporting regulations or that Virginia technically violated Fed regulations in their disqualifying practices

Yes, I know you weren't being confrontational. It is kind of a thorny area in law.

Technically, the federal law should apply in this case. However, in Printz v. United States, the Supreme Court ruled that the federal government (Congress) could not command the state government to collect and report data for them to supply the Brady law. They could bribe them to do it via additional federal funds or extort them by withholding federal funds; but they could not command it from on high.

So the ATF cannot force Virginia to report people according to the federal definition of mentally defective and allows Virginia to set their own standard in that area. In this case, Cho met the federal standard; but not the Virginia standard so he did not get reported.

McCarthy has been trying for several years to use additional federal funding to encourage states to report this information in compliance with federal law and the NRA has even backed this bill; but the mental health associations have fought it because they are concerned that people who fear they might lose their right to bear arms will simply conceal their illness and the situation will be worse instead of better.

ATW525
April 20, 2007, 12:04 PM
He shot himself.

If you have an explanation why that's not dangerous to one's self I'd REALLY like to hear it.

If he really wanted to hurt himself, he would have used a .45. After all, everybody knows that 9mm bullets just tickle and .45 bullets blow people into little bloody pieces if they even graze their toe.

Seriously, though, I think this incident does raise some serious issues about the effectiveness of the mental health system. There's definitely things that need to be addressed... and I think they go beyond simply preventing people like Cho from buying guns. As has been mentioned, bombs are readily available to anybody with the knowledge to make them (and that knowledge is readily available to anybody with an internet connection), and explosives are far more deadly than guns. Just look at what happened in Bahgdad this week. It's clear there needs to be better measures in place for dealing with the sick indvidual, including removing them from society if that is what's required.

At the same time I'm also very concerned about overcompensation in the aftermath. In the future judges might be more "trigger happy" when it comes to determining who is and who isn't mentally defective since they're not going to want to take a chance of being the one who let the next wacko walk the streets.

illspirit
April 20, 2007, 12:05 PM
But was he really adjudicated mentally defective though? Yes, the judge thought he was bonkers, and ordered a psychiatric evaluation. But if they found he wasn't crazy and released him, would he have been adjudicated as such? I mean, wouldn't the judge need the results of the psych test to legally define him as crazy?

Or am I missing something here...

John Hicks
April 20, 2007, 12:10 PM
My wife is a psychologist. I'll ask her tonight about the nuances of the legal terms. She does mostly social work, though -- no court ordered competency exams or such. But she may know (or remember from the schoolin' way back when )

Bartholomew Roberts
April 20, 2007, 12:15 PM
But was he really adjudicated mentally defective though? Yes, the judge thought he was bonkers, and ordered a psychiatric evaluation. But if they found he wasn't crazy and released him, would he have been adjudicated as such? I mean, wouldn't the judge need the results of the psych test to legally define him as crazy?

Read the comment up thread. According to the federal definition, you have been adjudicated mentally defective if a court has declared you a danger to yourself or others. In this case, that is exactly what happened. A psychiatrist found Cho a danger to himself and the judge signed off on that ordering him to counseling and further outpatient observation in 2005.

However, under the Virginia definition, you aren't adjudicated mentally defective unless you are involuntarily committed to a mental institution. Cho's outpatient care and counseling didn't qualify under the Virginia definition (Qualifier: I am taking ABC News at their word here. I haven't actually tried to find the Virginia statute to see if the reporter knew what they were talking about)

joab
April 20, 2007, 12:57 PM
This is not true of federal law which has been mentioned in several threads including citing the law by B. Roberts and myself.But none of that explains why he passed the NICS, did it?

This does
So the ATF cannot force Virginia to report people according to the federal definition of mentally defective and allows Virginia to set their own standard in that area. In this case, Cho met the federal standard; but not the Virginia standard so he did not get reported.

I sense some "loophole" closing in the near future

illspirit
April 20, 2007, 02:08 PM
Read the comment up thread. According to the federal definition, you have been adjudicated mentally defective if a court has declared you a danger to yourself or others. In this case, that is exactly what happened. A psychiatrist found Cho a danger to himself and the judge signed off on that ordering him to counseling and further outpatient observation in 2005.

However, under the Virginia definition, you aren't adjudicated mentally defective unless you are involuntarily committed to a mental institution. Cho's outpatient care and counseling didn't qualify under the Virginia definition (Qualifier: I am taking ABC News at their word here. I haven't actually tried to find the Virginia statute to see if the reporter knew what they were talking about)

Thanks for clearing that up. I read the earlier posts, but was wasn't sure if the psychiatrists had actually delivered a diagnosis providing grounds for a legal adjudication, or if they merely suggested therapy without a court order.

On that note, I was just trying to go to the VA State Police website to try and find the relevant laws, but it too slow to use. Every journalist in the world is probably hammering it right now..

Conju
April 20, 2007, 02:42 PM
You know what, no matter how you slice this orange, it still comes out to be proof that you cannot stop a person hell bent on destruction through gun control. Case closed.

If you enjoyed reading about "Rules Should Have Barred Weapon Purchase (AP headline)" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!