Friday, April 20, 2007

Does the US Need Better Reporting Laws for the Mentally Ill?

The mentally ill (those determined to be so by the courts etc.) are supposed to be barred from buying handguns, but frequently the information is not given to the NCIS:

But Rand and others—including federal officials—say that enforcement of the provision in the law barring the mentally ill from buying handguns has been erratic at best. More than 20 states don’t report any mental health records—including court records of mental commitments—to the FBI’s National Instant Criminal Background Check System (NICS), the central federal database for background checks on firearm purchases, according to Paul Bresson, a FBI spokesman. Other states, including Virginia, do report some records, but officials acknowledge that the state and federal databases are complete. Asked if Virginia should have submitted a record of the Temporary Detention Order on Cho to the bureau, Bresson responded: "We rely on the state to submit the data to us. We don't interpret the law. All we're doing is providing a database for them." Still, Bresson added, "based on what we now know, it would seem that it would have been a record that should have been in the NICS”...

Whatever the reason, Rep. Carolyn McCarthy of New York, contends that every year thousands of gun purchases by mentally unstable and other unqualified people have been falling through the cracks. McCarthy has been sponsoring legislation that would offer incentives to states to report more records of mental illness and commitments to federal and state databases.


One person in the article mentions that the problem is with the medical community that has traditionally opposed making such records available on privacy grounds. Confidentiality in mental health is very important, but then, so is making sure that the mentally ill do not obtain guns illegally. Can we really rely on someone like Cho marking "yes" to form 4473 asking “Have you ever been adjudicated mentally defective or … committed to a mental institution?” I think not.

42 Comments:

Anonymous JKB said...

I'm not sure I see where the medical community has any say in the matter. An adjudication is a judicial proceeding and such public records should be forwarded to the NICS. If necessary, judges could start issuing specific restraining orders prohibiting the purchase and possession of weapons by those they adjudicate as a threat to themselves and others. That way should the situation change the person could apply to the court to have the order removed.

8:37 AM, April 20, 2007  
Anonymous Viola Jaynes said...

I would have to agree with you, someone like Cho would not ever mark "yes" to those questions.

10:06 AM, April 20, 2007  
Anonymous brian said...

Does it matter? Was Cho ever admitted for inpatient psychological treatment?

The only way this even works is if there is some kind of recording of status. Unlike a criminal record, there aren't always records of someone's mental illness. Not all people with mental illness seek or receive treatment.

Unless we're going to embark on a massive mental measurement program and tag everyone, then all we really have to fall back on is the licensing requirements to weed out the truly crazy. And for some reason, I can see the first person denied a gun permit on psychological grounds suing the pants off the government and getting the ACLU to help.

11:08 AM, April 20, 2007  
Anonymous Sebastian said...

I started to make a comment, but it got so long I turned it into a post. The link is in my name if anyone wants to read. I generally support the NICS improvements, so it has more complete mental health records.

In Pennsylvania, we have our own instant check system called PICS, which does have more complete records, but VA relies on the national system, which is not quite as complete.

11:55 AM, April 20, 2007  
Blogger Purple Avenger said...

The Brady Bill allocated a significant amount of money for upgrading of state reporting systems in anticipation of the instant check process when it came online.

I would not be surprised to find out that the states spent the money on other stuff or never got it.

12:06 PM, April 20, 2007  
Blogger Kirk said...

"Can we really rely on someone like Cho marking 'yes' to form 4473 asking 'Have you ever been adjudicated mentally defective or … committed to a mental institution?'"

I thought that the point of all those questions was to add perjury to the offense. If not--that is, if we really do take the answers at face value--what's the point of the instant background check?

12:19 PM, April 20, 2007  
Blogger Tom said...

Helen, what do you think about overreach? I expect it to be a problem for whatever is going to be proposed in the wake of this event.
Here in California, beyond prohibitions on court-adjudicated or ordered individuals, anyone admitted to a facility under a so-called "5150" order for a 72-hour assessment and evaluation hold is barred from purchasing a gun for at least 5 years, regardless of any legal outcome or the outcome of an evaluation. A 5150 order can be initiated by a police officer, mental health worker, or psychiatrist on the belief that a person is a danger to self or others or is unable to care for oneself. A lot of times, it happens to sweep up too many people: a lot of non-violent domestic disputes (saying someone threatened to kill themself or someone else is a great way to get them out of the house for awhile), or people who get into some sort of communication misunderstanding when dealing with the system.
What I'm expecting, unfortunately, in the wake of this event is some sort of massive overreaction either proposed or enacted, where people who have had any contact, even voluntary or self-initiated, with the system could get added to some sort of federal blacklist. That isn't going to encourage people who need help to seek it out.

12:22 PM, April 20, 2007  
Blogger Helen said...

Tom,

I agree that we have a tendency to overreach in this society. Everything is either/or. If someone spanks a kid, it's child abuse, and on and on. We have to have more critical thought in this country and make decisions based on rationality and not stupidity or politics. Notice the politics of how hard or easy it is for certain people to get guns-- if there is threat etc. of domestic violence against a woman, a man loses his right to purchase a gun--even if he is accused unfairly. However, if someone stalks women, scares the crap out of university classes and is said to be an imminent danger to himself or others, then neither the courts nor the hospitals have a duty to report this because they might stigmitize the mentally ill. If a man is stigmitized as a domestic abuser, well surely he is guilty without much investigtion! It is one extreme to the other. We must look at the facts logically and think about what should legitimately constitute a reason to deny a person access to a weapon. Surely, we can do that without mass hysteria against the innocent. Or maybe I am being naive.

12:52 PM, April 20, 2007  
Anonymous Sebastian said...

I think, unfortunately, in this issue, it's very difficult to have a reasonable discussion. Not among individuals, but in the political space, as far as what would be appropriate public policy on the matter.

We have plenty of people on the pro-gun side who believe "shall not be infringed" means that no federal or state controls on possession of firearms are constitutional. I disagree with this notion, but the issue is full of absolutists.

On the anti-gun side, it's been pretty clear all along that their goal is to ban most firearms, particularly ones that are useful for self-defense. I have no doubt that many want to see all firearms banned. This precludes any reasonable debate on the issue, because the anti-gun side is always seeing every measure as a baby step towards the eventual goal of prohibition.

There are gun control laws that I am willing to accept and don't think are that infringing, but I generally won't say that in the political space because it emboldens the other side. I think there's quite a lot of us who would be more open to a reasonable discussion if the other side weren't pushing prohibition.

Of course, they claim to not be pushing it, but the fact is they have never met a gun control law, including the DC ban, that they didn't like. I don't think there's really much reasonable discussion to be had as long as that's the case.

1:17 PM, April 20, 2007  
Blogger Oligonicella said...

What percentage of the population do you have to be able to identify, Helen?

1:27 PM, April 20, 2007  
Blogger Tom said...

I say that Sebastian is right. We're in a "Mexican standoff" situation here. Principally, I don't think that many actors in this debate, especially on the gun-control side, have shown either honesty or good faith. The media continually and uncritically repeasts claims fed to them by the Bradys or VPC that "automatic weapons" are all over the place or other fictitious or distorted claims. The anti-gun crowd in their more candid moments openly claim that there is no second amendment right; and call anything up to the total ban in DC "reasonable and commonsense". Given this, there's little sense in compromise, and we always have to worry about what maybe the Hillary administration is going to do in a couple of years with whatever is done now.

Is there a solution? It would help if it was definitively established, say in a Supreme Court decision, that individuals indeed have a 2nd Amendment right. That would at least "disarm" (no pun intended) this issue and establish a principle that the anti-gunners couldn't dismiss, provide a legal basis for recourse for violations of that right, and then reframe the debate appropriately towards genuinely reasonable controls with fewer fears about the slippery slope or bootstrapping or misuse of such measures later. Ironically, if the 2nd Amendment was established definitively and clearly as an individual right, it would probably make establishing appropriate controls politically easier.

1:47 PM, April 20, 2007  
Anonymous Anonymous said...

Thank you very much. It seems to me, as I raised in my comment yesterday, that Cho's ability to acquire a handgun was a breakdown in the enforcement of existing gun laws.

2:03 PM, April 20, 2007  
Blogger Helen said...

Oligonicella,

I am not sure what you are asking. I think that the existing laws on the books for denial of a gun to those who are mentally ill to the point where a magistrate court ordered an evaluation and a subsequent mental health hospital said the person was an imminent threat to themselves should not be able to purchase a gun readily. Do you think they should?

2:12 PM, April 20, 2007  
Blogger Omaha1 said...

I am afraid that there will always be homicidal maniacs among us, some clever enough to evade diagnosis until they do something terrible. Cross-posted on Althouse, a tribute poem about the Virginia Tech massacre:


Now mingling with the peaceful flocks
All gentle bleats and snowy fleece
What nightmare beast among us stalks
Whose thirst for blood imperils peace
On sunny days, we watch the skies
For hawks, the harbingers of death
Sometimes, no shadow signifies
The advent of our final breath
And when the thinning veil of fate
Is ripped, like flesh by tooth and claw
Death's visage, recognized, too late
Consigns us to his grinning maw

3:03 PM, April 20, 2007  
Anonymous Bugs said...

Well, that should help people feel much better...

3:31 PM, April 20, 2007  
Blogger Omaha1 said...

I wasn't trying to make people feel better, just to make them realize the unpredictability of sudden death. Car accidents, heart attacks and strokes, are much more common of course, but you really never know when death will come for you, and you should keep that in mind as you go about your daily activities, and interact with your loved ones.

3:36 PM, April 20, 2007  
Anonymous Anonymous said...

This is not true:

---. It seems to me, as I raised in my comment yesterday, that Cho's ability to acquire a handgun was a breakdown in the enforcement of existing gun laws.

federal law says only if you were committed involuntarily as an inpatient for mental illness do you get on the list. Cho was not committed involuntarily.

if it's a breakdown, it's in how the law was written. However, I'm not so sure it was, in the sense that he was not an imminent threat. his threat manifested 18 months later. what were they supposed to see at the time to indicate he should not purchase a firearm?

volokh.com has a great thread on the legal aspects:
http://volokh.com/posts/1176929583.shtml

6:08 PM, April 20, 2007  
Anonymous TMink said...

When I was in training, a student came in for some help. It looked as if he was experiencing the onset of some schizophrenia, perhaps activated by his heavy usage of hallucinagens. He stopped using, went to student health for some meds, took them, did better, and dropped out of therapy.

6 months later he threw himself in front of a train in another town. All I knew is that he had been doing better, he had not expressed any dangerous thoughts or statements, and he had the right to stop treatment, he had the right to stop taking the meds that helped him too. While I am sorry he is gone, there was not much I could have done to stop him.

It is difficult to force someone into mental health treatment, it is impossible to make them work at getting better. We can put someone in the hospital for a few days, but we cannot keep them there.

It is tragic when that gentle young man died, it is tragic when a student becomes ill and kills people, but it is not necessarily preventable.

That is really sad, and a little scarry. But it is true.

Trey

6:54 PM, April 20, 2007  
Blogger Purple Avenger said...

federal law says only if you were committed involuntarily as an inpatient for mental illness do you get on the list.

This assertion is bogus. Read 27 CFR 478.32(a)(4)"Has been adjudicated as a mental defective or has been committed to a mental institution"

The people who draft this stuff are generally aware of the difference between the word "and" and "or".

9:05 PM, April 20, 2007  
Anonymous CaptDMO said...

So...
If someone has been designated a mental defective (by gum'mint paid flunkies? We're ALL doomed!) OR lies in their "papers",they cannot leagally purchase a firearm.

So now, in the pursuit of self preservation, they find themselves
with an illegal firearm (or fork).

What's the finding for someone officially known to be mentally defective?

How many "conditions" have been invented in the name of a broader clientelle base since those dark "sanitariums" have gone out of business?

Oops..
Yer honor, the accused needs to have ALL their assets, as well as ANY means to protect them, turned over to me due to what MAY have crossed the invisable line between ignoble and insane.

Don't worry, the gum'mint is there to help you! The court appointed mental health "industry" is your friend. You can tell me, it'll be our little secret, except if....

Sometimes, the idea of pop forensic psychology, with it's ominous ancestry, pales a Stephen King offering.

If it can be abused, they WILL come.

Ahem...present company excepted of course.

11:19 PM, April 20, 2007  
Anonymous CNS said...

I find a lot of this talk to be disturbing. I am bipolar, only diagnosed a couple years ago. Ten years ago, I was in college, and not far off from Cho. Violent, scaring my peers, accused of stalking, on antidepressants...oh and hating all human life.

Today? I have a job, productive member of society etc. In between...things happened. But few now would consider me a threat, though there are those that would still not be surprised if I "snapped". But thanks to supportive parents, a supportive community at college, all that, I am not a blood-soaked mass murderer.

I am just another member of society.

BUT there are those who would suck away my rights just because I am "unstable" (no hospitalizations...yet) and a potential danger. This just torques me off. Can I not own a firearm to defend myself? Do I need to buy a sword? (OK so I already have one...) What about my fiancee? Can SHE not own a gun because of me? (OK so she's psychotic and periodically asks me to hide the knives, but no one else knows that)

Point? You can never tell. It's a crapshoot. Either let us all have the same rights or take them all away. Remember: if I want to get a gun and go on a spree, I will, whatever laws are in place.

Of course I have zero intention of doing so. But it galls me just having to make that disclaimer.

1:47 AM, April 21, 2007  
Blogger J. Peden said...

Apparently like some others here, I'm not sure what people - or a gun control law - means by "mentally ill".

Specifically, if you are "on or have ever been" on anti-depressants, are you "mentally ill"? If so, then 10's of millions of people are mentally ill.

And are they then going to - surprise, surprise - be prohibited from buying a gun?

Now that would be convenient for gun controllists, wouldn't it?

Or, say, if you know you are depressed and voluntarily commit yourself to treatment, or if someone fills out the involuntary commitment forms just to be sure you don't suddenly leave the facility, is your commitment action reportable under gun control law?

Even involutary commitment for a hold period is really only a formality, but one which [I assume] a court has to sign off on - and automatically. The Judge involved cannot really *not* sign the commitment order. And at this stage the Judge never even actually sees you.

But is this commitment a reportable "court finding" under gun control law? If so, then the problem is that the process is not really a "hearing", contrary to what seems to be implied. You haven't even been evaluated yet. The Judge merely signs a paper which prevents you from leaving the facility - which is often only a regular hospital - for, say 1-3 days. After that, there has to be an actual hearing for any continued confinement to occur. But if you are "well" enough to not need further confinement, there is still no hearing.

There has been some intimation that Cho was depressed and was on anti-depressants. So far, I don't think Cho's problem was depression, though he might have been a "danger to himself" in 2005, when what I suspect was his real problem - paranoid schizophrenia - was starting to really overtake him, at which point he would possibly have been very frightened and confused to the point of thinking suicidally. But this itself would *not* be depression.

So does anyone know what medication Cho was on?

What I'm really trying to get to is that if Cho's condition is incorrectly laid to depression, a lot of people are not going to be able to purchase guns, once the gun-control lobby gets frenzied and the politicians must "do something".

Not to mention that some moron named Kennedy - not Teddy - has been on Fox News claiming that the *medications used to treat depression* can often cause action such as Cho's. I'm pretty sure that this is b.s., but this idea is nevertheless getting spread to the public so as to stigmatize not only the disease of depresson, but also the treatment itself.

So politically, a lot of people might just now be being set up to lose their gun rights.

If Cho was on an antipsychotic, not an antidepressant, the gun controllists might be thwarted in using Cho's case to further their obsession to disarm us.

Again, anyone know what med. Cho was on?

And are you people, myself included, who "are or have ever been on" anti-depressants mentally ill enough to think your gun rights should be taken away?

3:24 AM, April 21, 2007  
Blogger br549 said...

It is my belief Cho had a hell of a lot more going on than just depression.

7:48 AM, April 21, 2007  
Anonymous TMink said...

j. peden, that is an interesting can of worms. Thanks for opening it for us.

Trey

9:30 AM, April 21, 2007  
Blogger Purple Avenger said...

The mental illness section has been part of Federal Law since the Gun Control Act of 1968

Being almost 40 years on the books now, one would think some examples of abusive findings by courts exist somewhere if all these dire scenarios are being actualized.

I would like to see the govt abuse paranoia proponents produce a few of these examples. Actually, I'd be satisfied by production of a single such example.

10:56 AM, April 21, 2007  
Anonymous Anonymous said...

cho had autism according to his mom:

http://www.dailykos.com/story/2007/4/21/123026/296

1:54 PM, April 21, 2007  
Blogger Purple Avenger said...

Yea, autism is certainly a good rationalization for a mass murder.

4:40 PM, April 21, 2007  
Blogger jkline said...

Helen Wrote:

I am not sure what you are asking. I think that the existing laws on the books for denial of a gun to those who are mentally ill to the point where a magistrate court ordered an evaluation and a subsequent mental health hospital said the person was an imminent threat to themselves should not be able to purchase a gun readily. Do you think they should?

The issue with the Judicial decree committing him to the hospital and finding him a danger is that it depends on how the state manages these types of commitments.

In MO a Judge can commit you ex parte (not present) for up to 96 hours. The evidence need not come anywhere close to beyond a reasonable doubt, it may not even be by the preponderance of the evidence. IOW someone's liberty can be limited for at least 96 hours, which is bad enough. To go beyond the 96 hours requires a hearing where they have representation and the burden increases to preponderance of the evidence.

Also, MO law was loosened for commitments so that imminent harm was no longer a necessity. There has to be a risk of "substantial harm" but the statute allows historical data to be used to determine this:

Evidence of substantial risk may also include information about patterns of behavior that historically have resulted in serious harm previously being inflicted by a person upon himself

This makes being Committed in some jurisdictions very easy.

Civil commitment for up to 96 hours is bad enough, but taking other constitutionally guaranteed rights based on an ex parte decision is scary. MO is even more complex in that certain non-judicial entities can commit for 96 hours without juridical review.

There may be work-arounds, but I am not comfortable with this. I worked in a state facility and saw a lot of committed folks that were released within a few hours due to bad decisions based on bad data.

This does not even touch on how bad psychology and psychiatry are at predicting violence in individuals without clear histories of violence (like multiple felony arrests, etc).

I need to pull out my copy of the VRAG (Violence Risk Appraisal Guide) and see if there are factors that Cho scores high on (recognizing that my data sucks). Since the VRAG and other violence risk appraisal tools almost always rely heavily on static factors I am thinking that he would not be scored high. These are generally the best predictive tools we have. I just don't see how we are going to be able in mental health to step up and decide these issues well.

Jeff

http://www.psychandthelaw.com/

10:50 AM, April 22, 2007  
Blogger Helen said...

Jeff,

Thanks for the information. However, one concern I have is that the papers I have seen say that Cho was an imminent danger to himself. Yet, he was released. On the form from the magistrate, it indicated that he denied suicidal ideation or psychotic thinking. But as we as psychologists know, we cannot always take a patient's word for their condition and allow that to stand as a reason for release etc. Did the psychologist at St.Albans do any testing? Testing might have given more insight into his condition. As you say, psychologists and psychiatrists often have bad data. The bad data may be their own fault or it may not be.

Targeted violence is certainly hard to predict and the VRAG often is not that effective at determining targeted violence. There are questions about this young man's behavior that might have been able to be answered had a more thorough evaluation been done--in addition, no one has ever mentioned if Cho went to his outpatient treatment that was ordered for him. Did anyone follow up on this? Did the therapist he saw feel he was fine? Someone was prescribing him medication--what for and based on what, an interview? Do you think a thorough evaluation of Cho with projective and objective testing would have turned up nothing? For most people who are suicidal have psychopathology present. There are many concerns. Perhaps we in mental health cannot decide these issues well, but I think that we can do a better job then we have been doing.

In my career, I have seen many patients sent to the local mental health center only to be released in a matter of days or so. Even those teens and adults who were suicidal or worse. I have seen mental health evaluations that were negligent in that they relied on patient report rather than testing and third party information to determine more about patients who are potentially dangerous. The system can do better.

11:15 AM, April 22, 2007  
Blogger GeorgeH said...

One reason Judges and Medical people are loathe to report things to the Federal Database is that there is no working method of appeal. Once you go on the list, you are on it forever. Never mind that it was a severe case of situational depression that passed with time, or maybe just a Psychiatrist having a bad day, the victim is stuck.
Theoretically there are mechanisms for appealing and getting removed from the list, but Congress has consistently refused to fund them, so they are dead letters.

1:10 PM, April 22, 2007  
Blogger Allison said...

Read 27 CFR 478.32(a)(4)"Has been adjudicated as a mental defective or has been committed to a mental institution"

The people who draft this stuff are generally aware of the difference between the word "and" and "or".

And you are apparently unaware of the definition of commitment. Someone who is told they will be 5150'd if they don't walk into an inpatient facility and sign up for 15 days or until their insurance runs out, who then does just that, *isn't* committed and isn't adjudicated./

5:34 PM, April 23, 2007  
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