Gov. Timothy M. Kaine said yesterday that he is considering an executive order to make sure that gun sellers have more information about the mental health of potential buyers, a move that would have kept Seung Hui Cho from purchasing the handguns he used to kill 32 people at Virginia Tech last week.
A court had found Cho to be dangerously mentally ill, but that information was not available in the computer systems used by the outlets that sold Cho the guns. Kaine's proposal would ensure that such mental health information be in the database.
"I think there's a way to tighten this and to get more data onto the system," Kaine (D) said. If that data had been available at the gun stores, Cho, who killed himself after the rampage April 16, would have been barred by federal law from buying the weapons.
Even lawmakers who have traditionally been reluctant to restrict gun ownership said that providing additional information would help keep guns out of the hands of the dangerously mentally ill.
"The murderer down at Virginia Tech never should have been able to purchase a gun," said Del. Mark L. Cole (R-Fredericksburg). "Someone who's declared a threat to themselves or others should not be able to purchase a firearm."
Virginia is relatively aggressive in terms of reporting mental health records to the federal system that gun sellers use for background checks of potential buyers. Virginia was the first state to develop a system to provide background checks for firearms purchases -- four years before the 1993 federal Brady Handgun Violence Prevention Act set up the national system.
But the Brady system relies on states to send criminal and mental health records to the FBI database. As a result of lawsuits, the federal government cannot mandate that states do so. In 2003, Virginia began voluntarily reporting mental health records to the FBI's national instant background check system. Only 22 states provide such records. Since then, Virginia has reported more than 80,000 mental health records to the FBI, more than any other state.
But most of those records are generated by involuntary civil commitments to state hospitals, criminal judgments in which a person has been found not guilty by reason of insanity, or court proceedings that have determined a person "legally incompetent" or "mentally incapacitated" -- that is, unable to function in society.
In December 2005, Cho was briefly detained in a mental facility after police had told him to stop bothering women on campus. The next day, a special judge determined that Cho presented "an imminent danger to himself as a result of mental illness." He was released under an order to seek outpatient treatment.
Background check came up clean
But because Cho was not involuntarily committed to a mental hospital, his name was not sent to Virginia State Police and put into the computerized National Instant Criminal Background Check System.
Thus, when Cho presented his Virginia driver's license, green card and checkbook with matching address to a Blacksburg pawnshop owner in February and a Roanoke firearms dealer in March, his background check came up clean. In both instances, the computer screen read "PROCEED" with the sale.
Federal law, however, bars gun sales to people who have been adjudicated "mentally defective," which includes someone who has been determined by a court, board, commission or other legal authority to be a danger to himself or others as a result of mental illness, as Cho was in 2005.
With no mandate to report that for inclusion in the background check system, there is no way for the federal government to have enforced its broader interpretation of the Brady law, experts said. Even in states that do report mental health information, Cho probably would not have been flagged, they said.
For example, in Missouri, one of 22 reporting states, state law prohibits anyone who has been judged mentally incompetent or committed to a mental health facility from buying a gun.
"But we only send information if someone's been found criminally guilty by reason of insanity and committed to an institution," said Capt. Timothy P. McGrail of the Missouri State Highway Patrol. "Even though the law says we must send more, we don't. . . . The system is not perfect."
People on both sides of the gun debate -- those pushing for more restrictions and those who say that restrictions infringe upon Second Amendment rights -- agree that guns do not belong in the hands of the dangerously mentally ill. The National Rifle Association says that gun rights should be restored when a person is judged to be mentally competent. Both sides say that the instant background reporting system needs to be improved.
Kaine's order, which he first announced on WTOP Radio, would add to the information available at the time of purchase. His staff is researching whether it would need legislative approval.
"The process needs to be streamlined so there's no doubt about who gets entered and who doesn't get entered" into the system, said Sen. Kenneth W. Stolle (R-Virginia Beach), who chairs the Senate Courts of Justice Committee, where most gun legislation is considered.
Carol Ulrich, president of the National Alliance for the Mentally Ill in Northern Virginia, said she assumed that someone such as Cho would have been barred from buying a gun. Someone who has been involuntarily ordered to seek outpatient treatment, as Cho was, is technically in the same position as someone who has been involuntarily ordered to a mental facility, she said.
"The finding of mental illness and the degree of danger is the same," Ulrich said. "If they're a danger to themselves, in general, that means you believe there's a risk of suicide. So you would not want that person buying a gun."
Staff writer Bill Turque contributed to this report.