NC loophole? Yes and no. Only 22 states report ANY mental health info to NICS and NC is one of them. OTOH, the 22 states report different levels of info. John
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Posted on Thu, Apr. 26, 2007
N.C. law impedes gun-sale checks
By Jim Nesbitt and Jessica Rocha
McClatchy Newspapers
Federal law makes it a felony to knowingly sell a gun to anyone judged to have a dangerous mental illness, but thousands of people involuntarily committed to psychiatric institutions by N.C. courts aren't included in a national database aimed at preventing such sales, state officials said.
Court clerks across North Carolina keep their commitment records under wraps because of privacy provisions in state mental health statutes, undermining the effectiveness of the FBI-run National Instant Criminal Background Check System [NICS] used by gun dealers to determine whether a customer can legally purchase a firearm.
"We have no authority or directive to report this information to anybody," said Dick Ellis, spokesman for the N.C. Administrative Office of the Courts, the agency that oversees courthouse operations across the state. "Unless we're told directly to do so, we don't give our records over to anybody."
In the wake of last week's killing spree at Virginia Tech University by student Seung-Hui Cho, the availability of involuntary commitment orders and other court rulings related to mental health on the NICS database has become a major issue, pitting privacy concerns against public safety fears.
Despite a 2005 court declaration that Cho was a danger to himself, he was able to legally purchase two handguns, including the Glock 19 pistol he used to kill 32 Virginia Tech students and himself.
A Virginia judge ordered Cho to undergo a mental health evaluation, but this ruling didn't show up on the background check when he bought his pistols.
Federal law prohibits gun sales to people who fall under 10 categories, including convicted felons, illegal immigrants, subjects of domestic violence restraining orders and anyone who has been committed to a mental institution or ruled "mentally defective."
But the 10-year-old instant background check system depends on states to forward information to the federal database, particularly court orders related to mental health that are often kept confidential. In the year ending last July, there were 56,124 confidential special proceedings in North Carolina courts, including involuntary and voluntary commitments to mental institutions and hearings to suspend the licenses of attorneys, according to records with the N.C. Administrative Office of the Courts.
Experts say legislators have already created several exemptions to the mental health privacy provisions, including a requirement that courts report an involuntary commitment for substance abuse to the Department of Motor Vehicles. Unless legislators provide a similar exemption for law enforcement, though, court clerks won't forward these records to the NICS database for firearms purchases, Ellis said.
As a result of this cloak of privacy, North Carolina judicial or law enforcement actions based on mental health fall under two primary categories in the NICS database, said John Aldridge, special deputy attorney general and leading authority on state firearms law. And both are limited by the diligence of the local official in charge of the records.
One is the open court result in a criminal case, such as being found not guilty by reason of insanity, which would make it illegal for a person to purchase or possess a firearm or for someone to sell them one. The other is the record of denials for mental health reasons by North Carolina sheriffs on applications for pistol purchase permits and permits for concealed carry of pistols.
North Carolina sheriffs, who are responsible for conducting background checks on applicants for both permits, can check involuntary commitment records on concealed carry permits because applicants waive their privacy rights. They aren't allowed to check involuntary commitment records for pistol purchase permits, but may learn of such orders by other means and deny permits under the broad discretion granted them by North Carolina law.
It's also up to the sheriff's discretion whether to forward their permit denials to the NICS database. So far, North Carolina sheriffs have forwarded 319 mental health-related denials to the NICS database since it was created in 1998, said Aldridge. On Thursday, the House will consider a bill that would allow sheriffs to inform other sheriffs if they deny a pistol permit for mental health reasons.
Though it keeps involuntary commitments confidential, North Carolina is one of 22 states that report mental-health-related information to the NICS, federal officials say.
But the number of North Carolina filings pales beside the 80,000 mental-health related entries made to the NCIS database by Virginia.
Since the killings at Virginia Tech, there have been calls on the state and national level to make involuntary commitment orders an exception to medical privacy laws - something both mental health advocates and gun rights adherents successfully opposed in 2002 when this measure was introduced in North Carolina.
"We need to lower the threshold so that all people who show signs of being a danger to themselves or others are reported," said Lisa Price, executive director of North Carolinians Against Gun Violence, a gun-control group that pushed the 2002 legislation as part of an anti-gun trafficking package. "Keeping guns out of the wrong hands - that's our goal."
But F. Paul Valone, president of Grass Roots North Carolina, a gun rights organization that opposed the 2002 legislation, vows to fight any attempt to remove the confidentiality cloak from involuntary commitment orders.
"The intention behind that legislation was to foment additional gun control in North Carolina, and we won't tolerate that," Valone said.
UNC-Chapel Hill law professor Mark Botts, an expert on mental health records and confidentiality at UNC-Chapel Hill, said legislators have already written several other exemptions into the law.
For example, courts are required to notify the Division of Motor Vehicles if a person has been involuntarily committed for substance abuse so officials can look into whether driving privileges "raise a public safety concern" and should be revoked, Botts said.
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:banghead: 
