Federal Government Pushing States on Gun Database
By John Gramlich, Staff Writer
Following the deadliest mass shooting in U.S. history at Virginia Tech on April 16, Congress and the Bush administration are mounting a campaign to get states to participate in a federal program designed to keep the mentally ill from buying firearms.
Only 22 states, including Virginia , now provide records of those with disqualifying mental health histories to the National Instant Criminal Background Check System (NICS), an FBI database that lets gun dealers across the country identify potentially dangerous buyers before selling them weapons.
The database, set up by Congress as part of the 1993 Brady Handgun Violence Prevention Act, essentially serves as a registry of those prohibited from buying guns for reasons ranging from illegal residence in the United States to dishonorable discharge from the armed services. In the case of the mentally ill, the law bans sales to those " who have been adjudicated as a mental defective or have been committed to a mental institution."
Virginia Tech killer Cho Seung-Hui had been identified as a danger because of mental health problems while in college. But he slipped through a loophole in state law and was not listed in the database, even though Virginia leads the nation in the number of mental health records it shares with the FBI, providing more than 80,500 of the nearly 165,800 reported nationally.
Of the other states that provide mental health information to the database, nine have submitted fewer than 10 records, FBI spokesman Stephen G. Fischer Jr. told Stateline.org in an e-mail. Five of the nine have shared a single record, Fischer said, though he would not name those states.
A 1997 U.S. Supreme Court decision effectively made state participation in the FBI data-collection program optional, unless the federal government provides funding. According to criminal justice officials, more states aren't participating because of the high costs of transferring thousands of records, state privacy laws that preclude the sharing of mental health information and confusion over exactly who should be disqualified from purchasing guns.
Since the tragedy at Virginia Tech, however, in which Cho murdered 32 students and faculty before killing himself, Congress and the Bush administration have pushed to address the problems standing in the way of an expanded database.
The U.S. House of Representatives on June 13 passed a bill , backed by the influential National Rifle Association , that would require state participation in the program, provide $250 million a year in funding for states over the next three years and include penalties for not complying. The legislation has powerful supporters in the U.S. Senate, where it is awaiting consideration in the Judiciary Committee.
On the executive side, Attorney General Alberto Gonzales on June 21 urged a conference of 41 state attorneys general to participate in the federal program - even if it means revising current state laws to do so. Gonzales told his state counterparts that the Justice Department is willing "to develop procedures and policies that accommodate the various privacy and other state laws that may be impediments to providing information."
Gonzales' speech reiterated the findings of a June 13 report to the president , issued by the heads of the U.S. departments of Justice, Education and Health and Human Services, that identified problems in the wake of the Virginia Tech killings. The report found an information gap between states and the FBI on mental health records and recommended addressing "legal and financial barriers to submitting all relevant disqualifying information to the NICS."
In some states, the Virginia Tech killings have resulted in prompt action by state lawmakers to increase participation in the federal database.
Virginia Gov. Tim Kaine (D) issued an executive order in the immediate aftermath of the shooting spree to close the loophole exploited by Cho, requiring the state to share information on patients ordered to receive outpatient treatment - not just inpatient treatment. Cho had been ordered by a court to undergo outpatient treatment but never received it.
Maine Gov. John Baldacci (D) on July 3 issued an executive order requiring the state's Department of Public Safety to share information with the federal government on those deemed by courts to be mentally incompetent.
In Illinois , a bill awaiting approval from Illinois Gov. Rod Blagojevich (D) would require state participation in the federal database. Like Kaine's executive order, the legislation also would make available the records of those who have been deemed a danger to themselves or others and who have received outpatient mental health treatment.
"Frankly, there's no good reason why Illinois or any other state should not participate (in the database)," said Cara Smith, deputy chief of staff for policy and communications in the office of Illinois Attorney General Lisa Madigan, who led the push for the legislation.
But many in the mental health community and elsewhere see privacy threats in an expanded federal database.
William McGeveran, a law professor at the University of Minnesota who studies data privacy, said there are legitimate questions surrounding the release of mental health records, which - unlike criminal records - are not legally available to the public.
Even if states decide to share only names with the federal government and not specific mental health records, as is required under the legislation passed by the Illinois General Assembly, McGeveran said there is no guarantee that the information wouldn't be used for other purposes.
"I think there is mistrust on the part of a lot of people around the federal government handling this kind of personal information," McGeveran said. "That's understandable mistrust."
The 22 states that provide mental health records to the FBI are: Alabama, Arkansas, Arizona, California, Colorado, Florida, Iowa, Kansas, Kentucky, Maryland, Michigan, Missouri, North Carolina, New Hampshire, New York, Ohio, South Carolina, Tennessee, Utah, Virginia, Washington and Wyoming.