Crime, Guns / Firearms

Criminally Yours: Mental Illness And Guns

How do we guard against people on the verge of psychotic breaks buying guns?

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Following last week’s tragic shooting at Umpqua Community College in Roseburg, Oregon, the cry to regulate firearm sales has again surfaced.

While there is a lot of illegal trafficking of guns in the U.S., interestingly the men (and they have all been men) who have been responsible for the spate of recent mass shootings in churches, elementary schools, college campuses, and movie theaters, all purchased their guns legally. All of them also suffered from severe mental illness.

How was it that they could purchase guns at all? Shouldn’t someone have been notified and the sales prevented?

According to the National Institute of Justice (NIJ), a lot of the enforcement work over recent decades has been aimed at getting illegal guns off the streets — those guns belonging generally to urban youths in street gangs shooting each other over narcotics or turf. However this type of gun activity is only a small percentage of the total gun ownership in the U.S.

A recent study by the NIJ shows that gun ownership is highest among middle-aged, college-educated people in rural areas. The report found that “[w]hites are substantially more likely to own guns than Blacks, and Blacks are more likely to own guns than Hispanics.” The most common reason for owning firearms is recreation, followed by protection against crime. About 60 percent of people with legal guns bought them from federally licensed dealers. The rest purchased their weapons privately through dealers (who don’t have to ask background questions), or on the black market.

Only the federally licensed dealer is compelled to have the buyer fill out a questionnaire about his criminal, mental health, and substance-abuse history. That information is then inputted into the National Instant Criminal Background Check System (NICS), a database maintained by the FBI, and a background check is run.

The NICS system is only as good as the records it obtains. Criminal records are easy to find and input into the system. But records on whether someone abused drugs or has been suffering from a serious mental disease are much more difficult to discover.

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Because of well-founded HIPAA law protections, medical information is not public, nor should it be. According to federal law, only individuals who have been “adjudicated as a mental defective” or “committed to a mental institution” are prohibited from possessing or buying guns. This is a small percentage of the population suffering from mental illness.

Those who live in the community but suffer severe mental illness will not turn up in a national database and therefore, if seeking to buy a weapon, would not be prohibited through any background check.

To some extent, this is as it should be. Most people suffering mental illnesses from depression and anxiety to paranoid schizophrenia are not violent. According to the American Psychiatric Association, “the vast majority of people who are violent do not suffer from mental illnesses.”

So how do we guard against people on the verge of psychotic breaks buying guns?

As the system exists now, we can’t. Psychiatrists aren’t compelled to report their clients to police even if they espouse violent ideologies. (They can have someone committed to a hospital, but only in extreme circumstances.)

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Some legal approaches might be: 1) banning all assault rifles (no one really needs these for either recreational use or pleasure), or 2) requiring HIPAA releases for psychiatric info on everyone seeking to purchase a weapon. (We’ve got to sign such releases to get life insurance. Insurance companies don’t just take our word for it when we say we’re healthy — why shouldn’t there be a couple extra hoops to jump through to buy a weapon?)

But realistically, it’s up to individual communities to be watchful. That work would start with the immediate family — Why’s Johnny up there with four shotguns, playing Grand Theft Auto all day? — then extend to neighbors, friends, schools, colleagues, and anyone else who might easily get a sense when someone’s going off the deep end.

In the middle school in my town, a 7th grader learned that his friend brought a Glock into school along with a list of people he wanted to shoot. The 7th grader alerted authorities; the school went into lock down, and what could have been a terrible tragedy was stopped. (The child got the gun from his mom’s house. It had been kept in a basket in the kitchen.)

Buying a gun in this country is less controlled than smoking cigarettes. I know we’ve got the Second Amendment and no one’s trying to take it away, but maybe it’s time to put a few more safeguards in place so that something similar to what happened at Umpqua College won’t become a monthly event.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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