State, Federal Gun Laws Conflict

WSLS NewsChannel 10
Published: April 23, 2007

BLACKSBURG - A conflict over the legality of gun purchases by the mentally ill set the stage for Seung-Hui Cho's ability to arm himself for a shooting rampage that killed 32 people last week at Virginia Tech.

Even as they were investigating the details of what led the 23-year-old mentally ill senior to gun down classmates and teachers last week, state police issued a statement Friday saying a mentally ill person being treated on an outpatient basis "is not prohibited from purchase [of weapons] under the applicable state laws."

The same day, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives said that because Cho was "mentally defective" he should not have been able to pass background checks that opened the door for him to buy two weapons weeks before the murders.

A gun-control advocacy group said the same thing a day earlier.

"Based on existing federal law, Cho should not have passed background checks and should not have been allowed to purchase firearms," said the Brady Campaign to Prevent Gun Violence.

The issue has huge political ramifications relative to Second Amendment issues and for thousands of Virginia court proceedings each year affecting mentally unbalanced people. The conflict apparently exists in all but the 17 states that strictly adhere to the federal law, according to the Brady organization.

Neither Gov. Tim Kaine nor Attorney General Bob McDonnell was willing to address the issue yesterday.

"We are not going to comment until the families of the victims have had time to bury their loved ones, " said Kaine's chief of staff William Leighty.

"This needs to be looked at in a deliberate and cautious manner," McDonnell's spokesman, J.Martin Tucker, said yesterday.

Richard J. Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia, said Virginia's interpretation of the reporting requirement for background checks "is in clear violation of federal law."

But he stressed that differing language in federal and state laws makes for a wide variety of interpretations about reporting requirements from one court official to the next. Court clerks report mental commitment proceedings to law enforcement authorities for background checks.

"We need to have uniform interpretation," he said. Cho's release from a mental institution on an outpatient basis is likely a rarity given that Cho was judged mentally ill and a danger to himself, Bonnie said.

State Supreme Court records show that about 50,000 mental commitment procedures occur in Virginia annually.

The state-federal conflict in background checks stems from differing interpretations of language in federal and state gun control laws.

Those differences mean that a person with a history of mental illness can escape detection when a background check is done because Virginia does not interpret its law to mean that a mentally ill person being treated on an outpatient basis has been institutionalized, according to state police.

But federal records of over-the-counter weapons sales require a purchaser to state if he has "ever been adjudicated mentally defective" or "committed to a mental institution."

While a gun dealer is barred from selling a gun to a person who answers "yes" to that question on the federal form, the document remains with the gun dealer. The information is not made part of background databases; nor are courts required to report to law enforcement authorities on a person being found mentally ill and a danger if that person is not formally institutionalized, according to state law.

Cho was found to be a danger to himself and others by a Montgomery County magistrate on Dec. 13, 2005; the magistrate ordered him detained for further assessment at a Montgomery County mental facility.

He remained there overnight and the next day was released by a special justice who found that Cho was "an imminent danger to himself as a result of mental illness," according to court records.

But Special Justice Paul M. Barnett was compelled by state law to provide the least-restrictive, appropriate form of medical care for Cho and ordered him to receive out-patient treatment.

Barnett said in an interview that Virginia has no system to monitor the extent to which a patient complies. And Virginia Tech officials acknowledged that they were not aware of any court demands against Cho when he returned to school.

According to state police, an individual such as Cho who is detained for evaluation under a Temporary Detention Order but is quickly released under an outpatient treatment order is not considered to have been admitted.

That means no record of the person's assessment, even if mentally ill and a danger, is forwarded to law enforcement agencies for background check purposes.

Mentally ill people who have been formally admitted to an institution for mental-health problems are automatically denied the right to buy a gun, according to the state police statement.

Bill McKelway is a staff writer from the Richmond Times-Dispatch.