CNN Article Legal Loophole


April 24, 2007, 01:56 PM

BLACKSBURG, Virginia (CNN) -- When a judge deemed Virginia Tech shooter Seung-Hui Cho a danger to himself due to mental illness in 2005, that ruling should have disqualified him from buying a handgun under federal law.

It didn't.

And his slaughter of 32 people last week has raised questions about the efficacy of instant background checks for firearms purchases by the mentally ill. (Watch how the law failed )

Under federal law, anyone who has been judged to be a danger to himself or others because of mental illness, as Cho was, should be prohibited from buying a gun. (Watch campus shooting rekindle debate on gun control )

His status should have been noted in the National Instant Criminal Background Check System, a database of people disqualified from gun purchases.

But, in Cho's case, his mental status never went in the system.

A deadly information gap
That's because the federal government relied on Virginia to provide the information, and Virginia law disqualifies a person from buying firearms only if they have been involuntarily committed to a mental hospital. (Read the judge's order)

Cho was ordered to undergo outpatient treatment, but he was never committed. His appearance before the judge and his evaluation at a mental health facility did not show up when he bought the guns. (Read full story)

So Virginia never reported him, and he was not flagged in a background check.

Virginia Attorney General Robert McDonnell concedes that "the gap is clearly there in the state and federal law."

"We're taking a good look at whether the federal law would have been an absolute disqualifier," McDonnell said on CNN's "Late Edition with Wolf Blitzer."

He said state law may need to be changed to meet federal requirements.

Cho cheated system

Ironically, although Virginia law created a loophole for Cho, the Bureau of Alcohol, Tobacco, Firearms and Explosives says Virginia is actually one of the best performing states when it comes to entering mental status of persons into the background check system.

In fact, only 22 states, including Virginia, put any mental-status entries into the federal database. The remaining states cite costs and privacy concerns as reasons they don't.

But even if Virginia had put Cho in the database, he could still have sidestepped the background check by buying his firearms from a private seller or at a gun show from a "private" individual or "collector."

Those types of transactions account for about half of the guns sold in the United States each year.

In Virginia, a person 21 or older can buy only one handgun a month, unless he has a license to buy more.

Cho bought one gun, a .22-caliber pistol, in early February and another, a 9 mm pistol, in March.

He apparently bought the .22-caliber weapon from an out-of-state dealer.

Under federal law, a weapon purchased from an out-of-state dealer must be shipped to an in-state, federally licensed gun dealer, who runs a background check. The buyer must appear in person to pick up the gun, and the dealer receives a small fee -- usually between $20 and $40 -- for facilitating the pickup.

On February 9, Cho picked up the out-of-state purchase -- a Walther P22 pistol -- from JND pawnshop across the street from campus, according to Joe Dowdy, who owns the shop. (Watch dealer recount selling weapon to Cho )

Cho bought a Glock 19 and 50 rounds of ammunition on March 12, staying just within the limit of one gun purchase per month, said John Markell at Roanoke Firearms in nearby Roanoke, Virginia.

Even though Cho is a resident alien, Markell said, it was legal for him to purchase a firearm, and he presented three forms of identification: a driver's license, a checkbook with an address matching the driver's license, and a resident alien card.

Cho moved to the United States from South Korea at age 8.

Clips possibly bought on eBay
Investigators are seeking records related to an e-mail and eBay account that may have been used by Cho, a source close to the investigation said. The account being checked was used last month to buy magazine clips that would fit one of the handguns used by Cho in his shooting rampage.

A CNN check of eBay transaction records online showed that the account that investigators are examining -- Blazers5505 -- was used in numerous transactions over the past several months.

Those included the March 22 purchase of two empty, 10-round magazines for a Walther P22 handgun from a company in Rigby, Idaho, that sells hunting and shooting supplies. Authorities have said one of the two handguns used by Cho was a Walther P22 pistol. (Read full story)

The article leads you to believe that he did something illegal or subversive to purchase his firearms...

They can't understand, he was mentally ill.. and sometimes mentally ill people do crazy things like kill people.

You know, if guns are so scary, how come is horror movies the psycho killer rarely uses firearms? It's always big knives, or axes, or chainsaws, or trucks or something along those lines... hardly ever guns.

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April 24, 2007, 02:57 PM
Well, Cho did do something illegal--he murdered a whole bunch of people.

However, I'm not entirely convinced that even the court order he had would have disqualified him federally--it has not been entirely clear to me that what he was ordered to do (some sort of temporary outpatient thing) rose to the level of "adjudicated mentally defective."

And I'm also not clear that the Federal government's regulations on that have a lower burden of proof--the 4473 only asks "have you ever been adjudicated mentally defective...?" Perhaps I've missed something, but I'm not sure that the loophole CNN mentions actually existed.

EDIT: It appears that the federal standards are somewhat less strict--"adjudicated mentally defective" is defined in 27CFR178.11 simply as a finding by a court or other authority that the person has certain characteristics, one of which is "being a danger to self or others." I believe I stand corrected on the above.

Steve 48
April 24, 2007, 03:33 PM
I heard "Chuckie" Schumer last night on Fox telling them that the 2nd amendment was a guaranteed right and that they were going to "fix" the Cho incident with a voice vote to eliviate the reporting of all persons who are "a danger to themselves or others". I just don't trust that man no matter if he makes sense once in awhile. It may be a slippery slope!! Steve48

April 24, 2007, 03:38 PM
You know, if guns are so scary, how come is horror movies the psycho killer rarely uses firearms? It's always big knives, or axes, or chainsaws, or trucks or something along those lines... hardly ever guns.

Because what's scary is not having an adequate means to defend yourself. :cool: At least I guess why the victims rarely have guns =(

El Tejon
April 24, 2007, 03:49 PM
What "loophole" did Cho exploit again???:confused:

It seems to this badger that he went through all the governmentally mandated wickets to obtain his pistols. Where's the loophole now?:confused:

April 24, 2007, 03:52 PM
The loophole was Virginia not reporting the fact that he was considered a danger to himself and others... but, they're trying to make people think that there are loopholes that need to be "fixed" by "better, more strict" gun laws...

like my Professor of Political Science used to say "Getting a degree is all about jumping through hoops, if you want to get a pHD they just light those hoops on fire." Well, the same quote goes for dealing with the federal government. All bureaucracies for that matter I suppose...

April 24, 2007, 04:04 PM
So the linked TDO in the article says that a less restrictive alternative has been found to involuntary commitment - outpatient treatment. It says he was mentally ill, but was NOT a danger, COULD take care of himself, etc., etc., etc.

The state has said he didn't meet the standard and the feds have said that he should have been reported.

Let's see, Virginia lost the War of Northern Agression, so the feds will win the matter of the interpretation I predict. ;)


April 24, 2007, 04:08 PM
You know, if guns are so scary, how come is horror movies the psycho killer rarely uses firearms? It's always big knives, or axes, or chainsaws, or trucks or something along those lines... hardly ever guns.

No background check... lol

El Tejon
April 24, 2007, 04:10 PM
John, yes, exactly right.

Ohioan, well, if the government of Virginia failed to do something (at this point I do not know if they did), then it must be shouted from the rooftops that it was the government's fault. I move to ban governments.:)

April 24, 2007, 04:13 PM
I'm afraid I had to go back and change my answer regarding the linked TDO. It does contain the order to get outpatient care. OTOH, it still says he was not a danger.


April 24, 2007, 04:18 PM
I move to ban governments.

I second that motion!!

All in favor say "aye"!!

April 24, 2007, 04:22 PM
The more I read that form the screwier it gets. Buried at the bottom it says he is an imminent danger, yet immediately below that it says a less restrictive treatment environment is available and appropriate(or whatever the wording is, I hate pdf files, too hard to cut and paste) and that outpatient treatment is good to go.

Seems like he either ought to be sick enough to need intensive inpatient care or if he doesn't then he gets a pass.


April 24, 2007, 04:34 PM
What is a "Special Justice?" Does it mean the person is legally acting as a Judge in the matter?

another okie
April 24, 2007, 05:30 PM
The magistrate checked the box that says "danger to self" but not the one marked "danger to others." This still should have disqualified him by federal law, since he was judged "mentally defective," but Virginia does its own checks through the state police. Apparently Virginia only reports commitments to the state police. I suspect the Virginia law will be amended soon.

One reason so few states report the information is concern for privacy. Mental health rights advocates are a pretty tough lobby, and they don't like the idea of being permanently barred from owning firearms because they were once depressed. And they don't like the idea of the information being in a computer data base, either. We all know what happens to information once it's compiled.

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