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.
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.
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.