April 21, 2007
U.S. Rules Made Killer Ineligible to Purchase Gun
By MICHAEL LUO
WASHINGTON, April 20 — Under federal law, the Virginia Tech gunman Seung-Hui Cho should have been prohibited from buying a gun after a Virginia court declared him to be a danger to himself in late 2005 and sent him for psychiatric treatment, a state official and several legal experts said Friday.
Federal law prohibits anyone who has been “adjudicated as a mental defective,” as well as those who have been involuntarily committed to a mental health facility, from buying a gun.
The special justice’s order in late 2005 that directed Mr. Cho to seek outpatient treatment and declared him to be mentally ill and an imminent danger to himself fits the federal criteria and should have immediately disqualified him, said Richard J. Bonnie, chairman of the Supreme Court of Virginia’s Commission on Mental Health Law Reform.
A spokesman for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives also said that if Mr. Cho had been found mentally defective by a court, he should have been denied the right to purchase a gun.
The federal law defines adjudication as a mental defective to include “determination by a court, board, commission or other lawful authority” that as a result of mental illness, the person is a “danger to himself or others.”
Mr. Cho’s ability to buy two guns despite his history has brought new attention to the adequacy of background checks that scrutinize potential gun buyers. And since federal gun laws depend on states for enforcement, the failure of Virginia to flag Mr. Cho highlights the often incomplete information provided by states to federal authorities.
Currently, only 22 states submit any mental health records to the federal National Instant Criminal Background Check System, the Federal Bureau of Investigation said in a statement on Thursday. Virginia is the leading state in reporting disqualifications based on mental health criteria for the federal check system, the statement said.
Virginia state law on mental health disqualifications to firearms purchases, however, is worded slightly differently from the federal statute. So the form that Virginia courts use to notify state police about a mental health disqualification addresses only the state criteria, which list two potential categories that would warrant notification to the state police: someone who was “involuntarily committed” or ruled mentally “incapacitated.”
“It’s clear we have an imperfect connection between state law and the application of the federal prohibition,” Mr. Bonnie said. The commission he leads was created by the state last year to examine the state’s mental health laws.
Mr. Bonnie, the director of the University of Virginia Institute on Law, Psychiatry and Public Policy, said his panel would look into the matter. “We are going to fix this,” he said.
“I’m sure that the misfit exists in states across the country and the underreporting exists,” he said.
After two female Virginia Tech students complained about Mr. Cho’s behavior in 2005, he was sent to a psychiatric unit for evaluation and then ordered to undergo outpatient treatment, which would not qualify as an involuntary commitment under Virginia law, Mr. Bonnie said.
“What they did was use the terms that fit Virginia law,” he said. “They weren’t thinking about the federal. I suspect nobody even knew about these federal regulations.”
But Christopher Slobogin, a law professor at the University of Florida who is an expert on mental health, said that under his reading of Virginia law, outpatient treatment could qualify as involuntary commitment, meaning Virginia law should have barred Mr. Cho from buying a weapon as well. Mr. Bonnie said he and the state’s attorney general disagreed with that interpretation.
Mr. Slobogin added that the federal statute “on the plain face of the language, it would definitely apply to Cho.”
A spokesman for the Virginia attorney general’s office declined to comment on Friday, saying only that various agencies were “reviewing this situation.”
Richard Marianos, a spokesman for the federal firearms agency, said Friday that federal and state officials were looking into the question, studying the court proceedings and testimony.
But Mr. Marianos added, “If he was adjudicated as a mental defective by a court, he should have been disqualified.”
Dennis Henigan, legal director at the Brady Center to Prevent Gun Violence, said the oversight on the federal law in Virginia had probably been occurring for some time.
“They may have been doing this for years, just basically assuming, if the guy’s not disqualified under state law, then we don’t have to send anything to the state police,” Mr. Henigan said. “It’s a failure to recognize the independent obligation to the federal law.”
Most states do not follow the letter of the federal law when it comes to the mental health provisions, said Ron Honberg, legal director for the National Alliance on Mental Illness, an advocacy group.
“I suspect if we look at all the requirements that exist for the states, there’s probably a whole lot of them that don’t implement them,” Mr. Honberg said, explaining that the gap often comes from a lack of resources but also because no one is enforcing the requirements.
“When something like this happens, then people start to pay attention to this,” he said.
Representative Carolyn McCarthy, Democrat of New York, has been pushing a bill to require states to automate their criminal history records so computer databases used to conduct background checks on gun buyers are more complete.
The bill would also require states to submit their mental health records to their background check systems and give them money to allow them to do so.
According to gun control advocates, the mental health information currently submitted to the national check system is often spotty and incomplete, something Ms. McCarthy’s bill is designed to address.
Representative John D. Dingell, Democrat of Michigan and a former member of the National Rifle Association’s board of directors, is co-sponsoring the bill, which has twice passed the House only to stall in the Senate. Congressional aides say Mr. Dingell is negotiating with pro-gun groups to come up with language acceptable to them.
“The N.R.A. doesn’t have objections,” Mr. Dingell said in an interview. “There are other gun organizations on this that are problems.”
A spokesman for the rifle association declined to comment Friday on the legislation, but Mr. Dingell said the measure could prevent future tragedies.
“It resolves some serious problems in terms of preventing the wrong people from getting firearms,” he said.
