The system to stop mentally ill people from acquiring guns is a messy conglomerate of state and federal laws that often don't align and of databases that don't communicate
January 13, 2013 3:00 PM
John Shick is subdued by police after an altercation in Portland, Ore., in 2009.
By Moriah Balingit Pittsburgh Post-Gazette
In the spring of 2011, John F. Shick met a man in a New Mexico parking lot and bought two pistols for $810, along with extra clips, ammunition and a holster.
The man who sold him the guns did not know that Shick had been arrested a year earlier after acting erratically at Portland International Airport in Oregon, that police had found a journal filled with paranoid ramblings, and that it had taken six people and a sedative to restrain him when he was taken to a mental hospital for a commitment ordered by a judge. Shick had also been committed in New York City.
On March 8, 2012, Shick walked into the lobby of Western Psychiatric Institute and Clinic in Oakland carrying both guns. He killed one person and wounded several others before police shot and killed him.
PG graphic: Background checks (Click image for larger version)
To arrive at that tragic point, Shick had bypassed a system of laws meant to keep guns from a man like him -- diagnosed with schizophrenia and committed at least three times to mental hospitals in two states.
That system is a messy conglomerate of state and federal laws that often don't align and of databases that don't communicate. It is under renewed scrutiny in the wake of the shootings at Sandy Hook Elementary School in Newtown, Conn., on Dec. 14.
Though it's not known whether the Newtown shooter, 20-year-old Adam Lanza, was mentally ill, the system is one of many under the microscope as President Barack Obama pushes for an overhaul of gun regulations.
In most cases, federal law prohibits those who have been involuntarily committed to psychiatric facilities from purchasing or owning firearms. Gun dealers licensed by the federal government check a potential buyer's background with the help of local police or the FBI, which run the person through a database called the National Instant Check System, or NICS.
Critics, however, point out that about 40 percent of gun purchases occur without background checks.
The national database is also missing reams of mental health records because many states -- including Pennsylvania -- have submitted relatively few, or none at all. According to a report prepared by Mayors Against Illegal Guns, 19 states have submitted fewer than 100 records as of October 2012.
The White House now is considering requiring background checks for all purchases. And other advocacy groups, including the Brady Campaign to Prevent Gun Violence and CeaseFirePA, have urged the government to take action to ensure that states transmit mental health records to NICS.
Allegheny County District Attorney Stephen A. Zappala Jr. is seeking an alternative way to perform background checks because the NICS is so riddled with gaps. On Jan. 2, he sent letters to agencies in every state, asking whether they would provide him with information if he inquired about whether individuals -- like Shick -- were ever barred from owning firearms.
The reasons behind the lack of participation are complicated. Some states, for example, lack the technological capacity to transmit records because many mental health records are on paper. An incentive program created after the Virginia Tech shootings in 2007 to get states to contribute records has been underfunded and underutilized.
Trouble in Pennsylvania
Pennsylvania is one of the most populous states that does not submit records to the national database.
Currently, more than 600,000 mental health files sit in the hands of the Pennsylvania State Police, used by the Pennsylvania Instant Check System to screen potential gun buyers in the state. As of October, only one mental health record had been submitted to NICS. That's because state police say they are awaiting a ruling from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives on whether the most common type of involuntary commitment in Pennsylvania -- a 302 commitment -- should bar a person from buying a gun.
A 302 is the shortest type of involuntary mental health commitment, allowing a person to be held for 120 hours if he or she deemed to be a danger to themselves or others. It's the most commonly used tool for people to be committed to mental institutions. A 302 commitment means that the person committed cannot buy a gun in Pennsylvania. These represent around 70 to 75 percent of the 600,000 records in possession of state police.
The ATF is currently reviewing the state's 302 statute to determine whether people committed under it are barred by federal law from buying guns. ATF spokeswoman Ginger Colbrun said the review was prompted by an inquiry from state police. The ATF also said that federal and state litigation are playing a role in the review.
This means that while those who are 302'ed in Pennsylvania are barred from buying guns within the commonwealth, they could potentially buy guns elsewhere if state regulations permitted.
The ATF said it recognizes that other types of more serious involuntary commitments in Pennsylvania would bar gun purchases.
Lt. Col. Scott Snyder, the state police deputy commissioner, said Pennsylvania has had the ability to transmit records for more than a year. But for a large portion of the records, officials are unable to segregate the 302s. So state police have been waiting since June 2011 for an answer from ATF.
"Until a decision is made, it's pointless to send just a handful when hundreds of thousands of other records are in a holding pattern," Lt. Col. Snyder said.
Ms. Colbrun said it's the state's responsibility to segregate its records and submit them. Just because a portion of the state's mental health laws are under review, "that doesn't mean you can't submit your records."
"It was Pennsylvania that was unable to separate that subset for input" into NICS, she said.
A Dec. 19 letter from state police Commissioner Frank Noonan to NICS section chief Paul Wysopal accused ATF of dragging its feet in making a determination.
State police did not receive a response until November 2012, when a man who had been 302'ed and denied a gun purchase in Pennsylvania attempted to buy a gun in West Virginia. A background check in that state had turned up his denial in Pennsylvania and again raised the question as to whether a 302 should prevent a person from buying a gun in another state. In the letter, Commissioner Noonan said he believed the man was ultimately stopped from buying a gun.
"We never got a definitive answer, some determination as to whether they are federally prohibiting or not and what would be the reason behind it," said Lt. Col. Snyder.
Still, Mr. Noonan is operating under the assumption that those who are 302'ed are barred by federal law from buying guns. Mr. Snyder said the state police are readying a link to the national database to transmit records and could start the transmission as soon as next week.
State Rep. Todd Stephens, a Republican from Montgomery County, said he was "shocked" to hear that Pennsylvania's 302 law was under review by the ATF. Mr. Stephens plans to introduce legislation ensuring the state police transmit records to the national database.
"It seems clear as day to me that under federal law" a 302 commitment would be a " federal prohibitor," he said. "I don't know how you can read that any other way."
Across the country
Elsewhere, the challenges highlighted in Pennsylvania bog down other states. Many of these roadblocks were spelled out in a Government Accountability Office report that was published in July.
The report identified several problems that states encountered in transmitting their records to the national system. Technological problems were one of the biggest barriers. In some places, mental health records exist on paper, hidden away in hospital file cabinets.
"DOJ officials noted that technological challenges are particularly salient for mental health records because these records originate from numerous sources within the state -- such as courts, private hospitals, and state offices mental health -- and are not typically captured by any single state agency," the report said.
There are legal issues as well. Like in Pennsylvania, some states' definition of who can be committed does not align with the federal definition of who is prohibited from owning a firearm. And some state privacy laws prohibit mental health information from being shared.
As a result, 19 states have submitted fewer than 100 records and many are still falling short of providing all of their records. Even in the states that do submit, it's difficult to track what proportion of their records make it to the national database.
The 32 deaths at Virginia Tech awakened some federal lawmakers to the gaps in the system. Though the gunman, Seung-Hui Cho, had been mandated to receive mental health treatment after threatening suicide, he was able to pass two NICS checks and buy firearms because the state where he was committed, Virginia, did not submit records to the national database at that time.
The shootings prompted the passage of the NICS Improvement Act of 2007, which provided money to help modernize states' record-keeping systems. It also employed a carrot-and-stick approach, offering financial incentives to states that transmitted their records and threatening to cut other grant money if states did not conform.
While there has been a dramatic increase in records transmission, the act has fallen short of expectations. As of mid-2012, only 16 states had received or were eligible for funding, due to the law's onerous requirements for grant eligibility.
One that seems to be tripping a lot of states up is the requirement that to get the grant money they must create a "relief program" to give those who have been adjudicated mentally ill the opportunity to regain their gun rights.
The financial incentive part of the act also has been underfunded. It was slated to receive $125 million in 2009, $250 million for 2010 and 2011, and $125 million in 2012.
But funding levels every year have never gone above $20 million; in 2012, only $5 million was appropriated.
The Shick gap
In early 2011, a little more than a year after Shick had been arrested and committed to a psychiatric hospital by a judge in Portland, Ore., he attempted to buy a gun but was denied when a background check turned up his mental health history.
Instead, he went to Albuquerque, N.M., where a local man, John Karnis, had advertised two guns for sale in a newspaper.
While Oregon, at the time, was not transmitting mental health records to the national database, New York was. It's likely that John Shick, who was involuntarily committed in New York City in 2005, would have been red-flagged had a background check been performed.
New Mexico, like many other states, does not mandate background checks for purchases between individuals. While Pennsylvania mandates background checks for all handgun purchases, it does not require them for purchases of long guns -- including assault rifles -- that occur between private individuals. About 40 percent of gun purchases occur without background checks, crippling the effect of the NICS database.
Paul Appelbaum is a professor of psychiatry at Columbia University who is studying whether policies like NICS actually reduce violence. He believes the focus on transmitting mental health records to the national database may be misguided, not only because so many gun purchases occur without background checks, but also because many guns are obtained illegally.
"There's a substantial illegal market in firearms," he said. "It might make one wonder whether the NICS approach that has gotten so much of the focus of violence-reduction policies is really going to make a substantial difference."
Dr. Appelbaum also pointed out that studies have shown that just 3 percent to 5 percent of all violence in the country is attributed to mental illness. And those with serious mental illness have a "slightly elevated risk" for committing acts of violence. By and large, the mentally ill are far more likely to be victims of violence than perpetrators of it, he said.
"Despite the data, there is a common perception among the general public that people with mental illness are very dangerous people," he said, adding that people with mental illness have become tools for misdirection by those who oppose broader gun restrictions.
In the case of Lanza, the assault rifle he wielded in Newtown was legally purchased by his mother. He had no known contact with the mental health system. It's unclear whether a more robust background check system could have stopped him.
"Sometimes it's just difficult to tell," said Lt. Col. Snyder, the state police deputy commissioner.
"Unfortunately, when these types of incidents occur, everyone rushes to judgment and demands that something be done, and it's really difficult to understand what, if anything, could have been done to prevent a tragedy from occurring.