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Originally published March 17, 2013 at 8:57 PM | Page modified March 18, 2013 at 9:31 AM

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State found better than most on gun-owner mental-health checks

Washington has a strong record of submitting mental-health records to a database used to conduct federal background checks on people wanting to buy guns. But many records don’t make it into the system, which can allow guns to fall into the wrong hands.

Seattle Times staff reporter

Mental health reporting laws by state

Explore an interactive map to read about each state's laws and whether they submit mental health records to NICS.

Prohibited from buying guns

The National Instant Criminal Background Check Database contains information about a variety of people who are prohibited from buying guns:

• Anyone convicted or under suspicion of a crime punishable by at least one year in prison, or anyone convicted of a misdemeanor punishable by at least two years in prison.

• Fugitives of justice

• Anyone convicted of using or possessing drugs

• Anyone determined “mental defective” or incompetent to handle their own affairs by a court, or anyone involuntarily committed to a mental institution or found guilty for reason of insanity.

• Illegal residents of the U.S. or anyone visiting the U.S. temporarily

• Anyone dishonorably discharged from the U.S. military

• Anyone who renounced his or her U.S. citizenship

• Anyone with a protective order issued against them

• Anyone who made a threat or was convicted of a misdemeanor involving force or a deadly weapon against a close relative or someone with whom they come in close contact

Source: FBI

Highest and lowest reporters

Some states report thousands of cases of mentally ill people to the national background-check database each year. Some report none.

Per 100,000 residents

BEST

1. Virginia — 2,253.9

2. Delaware — 2,082.4

3. California — 1,371.1

4. Washington — 1,309.4

5. Michigan — 1,077.7

WORST

1. Rhode Island — 0

2. Pennsylvania — 0

3. Massachusetts — 0

4. Louisiana — 0

5. Hawaii — 0.1

Mayors Against Illegal Guns, November 2012

Improvements

The Law Center to Prevent Gun Violence, an advocacy group, recommends which records should be submitted to the national database and when. Here are the recommendations and whether Washington complies:

1. States must report anyone who has been found incompetent to stand trial, not guilty by reason of insanity, or ordered to undergo treatment by a court: Yes.

2. States must report their cases to the national database as well as an in-state agency: Yes.

3. States must submit records immediately after a person has been deemed mentally unstable by a court: Partial; Washington sends them in within 3 days.

4. Mental-health professionals must report anyone they believe to be particularly dangerous, even if they have not gone through the court system: No.

5. States must report anyone appointed a guardian because they have been found incompetent to handle their own affairs: No

The Law Center to Prevent Gun Violence

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As the nation debates expanding the number of background checks on gun purchasers, the federal database used in conducting those checks is riddled with holes.

Washington submits more mental-health records to the database than many states.

But because of privacy laws and loopholes, many of the state’s mental-health records are not submitted — including the name of anyone who has been involuntarily committed for 72 hours, the shortest possible hold.

While gun-control advocates say adding these and other records is vital to public safety, mental-health professionals worry that submitting too many records could invade patients’ privacy or discourage them from seeking treatment.

The debate comes in the wake of the Sandy Hook Elementary School massacre in Connecticut, which claimed the lives of 20 children and six adults in December and has prompted sustained calls for greater gun control.

Washington only submits records of people who have been involuntarily committed by a court for at least 14 days, mirroring federal law, or those who have been found mentally ill by a court. Congress is now looking to increase federal requirements as well, including anyone determined mentally ill by a federal judge.

The mentally ill who have not come before a judge, people for whom a guardian was appointed by the state, or those who were committed for 72 hours do not appear in the FBI’s database, the National Instant Criminal Background Check System (NICS).

Even so, Washington sends more names to NICS than most other states, ranking fourth for submitting mental-health records, according to a national gun-safety group, Mayors Against Illegal Guns.

In reality, only about 1 percent of gun purchases are denied nationally because of mental illness. Most denials are because a purchaser has a felony record, although fugitives and illegal residents also have higher denial rates than the mentally ill.

But as the Sandy Hook massacre illustrated, when guns do fall into the hands of unstable individuals, the consequences can be devastating.

One reason the state does not submit records of 72-hour commitments is because those holds can be made solely based on one mental-health professionals’ recommendations, while holds of 14 days or longer require judicial review.

“The problem with taking away someone’s rights on a 72-hour commitment is a due-process problem,” former state Attorney General Rob McKenna said.

State lawmakers considered, but did not approve, several gun-control measures this session. A bill that would have required background checks for private gun sales, not just at licensed gun shops, fell a few votes short in the House on Tuesday night.

Two other measures never made it out of committee — one calling for tougher gun-storage provisions and another that would have restricted access to guns for people going through the state’s mental-health court system.

Closing gaps

The federal government is also looking to close the gaps in NICS reporting requirements.

In 2007, Seung-Hui Cho, a senior at Virginia Tech, killed 32 people and wounded 17 others on campus. Although he had previously been found mentally ill by a judge, his records were mistakenly never submitted to NICS, and he was able to pass a background check to buy the gun he used in the shootings.

That case prompted a federal law encouraging states to improve their reporting standards. Many did, though some still fail to send any records to the database.

Passed in 2009

Washington’s law was passed in 2009 at McKenna’s urging. Previously, records were submitted only after 90-day involuntary commitments, but McKenna convened a task force to bring the law into line with federal reporting requirements, which require records of 14-day commitments or longer to be submitted.

In Washington and most other states, the restriction typically remains in place unless the person petitions to have it removed.

The measures do not address what Lindsay Nichols of the California-based Law Center to Prevent Gun Violence, an advocacy group, considers some of the biggest loopholes in the state’s reporting requirements — that 72-hour commitments are not reported, and neither are records of people for whom the state has appointed a guardian because they cannot manage their own affairs.

Though Virginia allowed Cho to slip through the cracks, it still has some of the nation’s most comprehensive reporting requirements, including for guardianship cases.

In Washington state, officials have not considered submitting those records, saying it’s the responsibility of guardians to make sure the individuals they oversee do not get guns.

California, which also has some of the strictest reporting laws, determines prohibitions based on the length of the involuntary commitment.

A 72-hour hold leads to a five-year ban, while a 14-day commitment leads to a permanent ban unless the defendant successfully petitions to have his gun rights restored.

This law gets a wide range of people into the database but also provides a path to restore gun rights for those no longer considered a risk, which Nichols said is key to any successful reporting law.

Confidentiality

Many mental-health providers caution against expanding the reporting law too far.

Gregory Robinson, senior policy analyst at the Washington Community Mental Health Council, which lobbies for health-care providers, said too-stringent reporting laws may discourage people from seeking treatment, which could ultimately be more harmful than an incomplete database.

“We certainly wouldn’t want to have a situation where people avoid treatment because they are afraid the confidentiality of their treatment would be disclosed,” Robinson said.

But some gun-safety proponents think mental-health providers should do more reporting.

To measure their patients’ mental health, most doctors use the same 0-100 scale, where the lower the score, the more severe the mental illness. Bill Waite, chairman of Common Sense on Guns, based in the Seattle area, has recommended that records be reported for all patients who score below a 50, the level at which “serious symptoms” occur.

Private psychiatrists now only report patients they believe have made a credible threat against a specific target, and who have the means to carry out that threat.

Waite, a gun enthusiast, founded the organization three years ago after his son walked into a firearm store and used one of the guns there to commit suicide in the store.

”You’re never going to address these gun things without going beyond guns,” Waite said.

Sarah Freishtat: 206-464-2373 or sfreishtat@seattletimes.com

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