Gun sale loopholes stir fears

Date: 4/29/2007

Background check might not show person was judged mentally ill

By Glenn Smith

The Post and Courier

Sunday, April 29, 2007

Michael Bailey was shot, arrested and deemed psychotic after threatening to kill two Charleston police officers with a knife. Too mentally ill to stand trial, he was committed to a psychiatric hospital for treatment.

But Bailey probably could still buy a pistol in any number of gun shops in South Carolina.

Federal law bans handgun sales to people judged mentally ill, but South Carolina is among some 28 states that don't share mental health records with the FBI database used to screen gun buyers. What's more, a change in state court procedures has made it easier for some mentally ill suspects to wipe criminal charges from their records and circumvent laws designed to keep guns out of their hands, authorities said.

Some worry that these loopholes could have deadly consequences and further undermine the nation's system for conducting background checks on would-be gun purchasers.

That system has come under increased scrutiny in the wake of the Virginia Tech massacre, in which a mentally unhinged student killed 32 people before taking his own life. Some in Congress are pushing for reforms that would require state and federal agencies to provide updated mental health records to the National Instant Background Check System to prevent similar tragedies. During the Democratic presidential debate Thursday in Orangeburg, several candidates discussed the need to examine mental health histories as part of the gun sale process.

A standard background check would almost certainly catch someone like Anthony Hamilton, a mentally ill Charleston man who was accused of randomly shooting and wounding a College of Charleston student in 2001. A judge ruled Hamilton was not guilty by reason of insanity, a verdict that would pop up on any criminal records check.

A case such as Michael Bailey's, however, is not so clear cut because a verdict was never rendered. The 46-year-old Charleston man was charged with attacking two officers outside the Crisis Ministries homeless shelter in July 2005. Psychiatrists determined that Bailey was too paranoid and agitated to understand the legal proceedings against him. A judge last year committed Bailey to a psychiatric hospital, leaving prosecutors unable to proceed with the case.

Prior to January 2006, the disposition of Bailey's case would have been listed in court records as "judicially committed," a red flag indicating that he was too mentally ill to stand trial, said 9th Circuit Assistant Solicitor Edward Knisley. Last year, however, the state court administration eliminated that option to keep these cases from lingering in a limbo state on the docket. The red flag, in essence, disappeared. State records now reflect simply that prosecutors have dismissed the charges in the case, Knisley said.

This increases the chance that mentally ill offenders like Bailey could slip through a criminal background check at a gun shop or get charges expunged from their records altogether, Knisley said. In fact, a recent check of Bailey's rap sheet shows no criminal record in South Carolina, according to State Law Enforcement Division records.

"It's an unusual and rare situation," said Scarlett Wilson, 9th Circuit chief deputy solicitor. "But the problem is, for just one person to slip through the cracks, the results could be catastrophic. All it takes is the wrong one, and there is no telling who the wrong one is."

First Circuit Solicitor David Pascoe called that development "scary." Such cases have led some prosecutors to question why the state allows serious criminal charges to be expunged from a person's criminal record without a concrete verdict, he said.

Mary Schroeder, deputy director of the state court administration, said she had heard no concerns about the procedural change in judicial commitment cases. Prosecutors can keep the charges pending against those individuals if they are worried about dismissing the cases too soon, she said.

These offenders would still be precluded from buying a pistol under the federal law barring handgun sales to anyone committed to a psychiatric institution or declared mentally ill by the courts. But the law largely relies on an honor system, trusting gun buyers to tell the firearms dealer if they have been committed to psychiatric institution. Beating the system can be as simple as checking the wrong box on a form.

The Brady Handgun Violence Prevention Act of 1993 authorizes state law enforcement officials to submit records on the mentally ill to a national database the FBI uses to determine eligibility for firearm purchases. But in South Carolina and many other states, technological restraints or privacy laws prevent authorities from sharing that information.

SLED received a $60,000 federal grant last year to improve its ability to identify people who are mentally unfit to own a firearm. The agency recently authorized Unisys Corp. to link SLED's computer system with state probate courts to track involuntary commitments to mental institutions, Chief Robert Stewart said. He hopes that will be done before year's end.

SLED has not decided how to deal with cases involving people who receive care at private psychiatric facilities or voluntarily seek treatment for mental illness, Stewart said.

That dilemma arose last year after a murder-suicide in Summerville claimed a 27-year-old woman and the man who desired her. Mark Turner fatally shot Jacquelyn Ruff with a pistol he bought at a gun shop one day after checking himself out of a psychiatric hospital. He was under no obligation to tell anyone about his stay at the facility because he voluntarily sought treatment after threats of suicide.

The Virginia Tech shooter likewise escaped scrutiny during his purchase of two handguns. A court ordered him to undergo psychiatric counseling in 2005 after determining he presented a danger to himself. But Virginia didn't enter that court order in the National Instant Background Check System database because gunman Seung-Hui Cho was never formally committed to a psychiatric facility.

Virginia Gov. Timothy Kaine is mulling action to close that loophole. And Congress is discussing a bill that would create a grant program to help states automate records and share more accurate criminal and mental health information with the FBI database.

Gun control groups hail the reform legislation as a needed step to ensure public safety. But some in the gun lobby argue that a history of criminal conduct, not mental illness, should be the basis for denying someone the right to buy a gun. Gun Owners of America, for instance, maintains the measure would unfairly affect veterans and other "honorable" citizens who have sought treatment for stress and other maladies. Some mental health advocates also worry about the legislation's potential for stigmatizing those who seek treatment for mental illness.

Reach Glenn Smith at 937-5556 or gsmith@postandcourier.com.

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