A New York Times report that analyzed more than a thousand police and court records in cases involving mental illness exposes several gaps in state gun violence prevention law. The reporters portray the investigation as underscoring “how easy it is for people with serious mental health problems to have guns.” But what the investigation actually reveals is how lax state gun laws allow those with a known history of violent propensities — who have also interacted with the mental health system — to retain access to guns. Here are four of the ways some states remain vulnerable from gun possession by those who have exhibited dangerous behavior:
Police must return the guns they seize from those who are deemed dangerous, violent, or delusional. In many states, police have the power to seize guns during an initial police incident for “safekeeping.” But when those cases don’t end with conviction for a prohibited crime, laws in many states do not provide an avenue for police to keep those guns upon a finding of future dangerousness. In one 2004 Indiana incident, officers seized nine guns from Kenneth C. Anderson after he was deemed “delusional and dangerous” during a psychiatric evaluation. Anderson was not committed, however, and “when he sought the return of his guns, police officials concluded that they had no legal grounds to keep them,” the Times reports. Several months later, Anderson killed his mother and a police officer, and wounded four other officers. In response, Indiana amended its law to allow police to confiscate guns from dangerous individuals, and keep those guns for up to five years with court approval. But other states have no such requirements, and police in Colorado and Florida have recently had to return guns to a man who suggested to his psychologist he would commit violence, and another who asked after emerging from a catatonic state whether he had hurt anyone.
Even after an individual is considered dangerous, police cannot search a home for additional guns. In Arapahoe, Colorado, if officers “encountered a man on the street with a gun acting irrationally or suicidal,” they could temporarily seize that gun. But in addition to having to return that gun, they could not go to his home to look for other guns, Arapahoe’s sheriff explains. Connecticut is one of the few states that permits police to seek a warrant to seize guns from those who pose “a risk of imminent self injury to self or others.” A new report from a consortium of mental health and public health professionals has called for more states to implement these policies.
Police who seize guns don’t report the incidents to the federal background check database. In Indiana, police can in some instances hold onto the guns they seize from individuals during violent incidents. But Indiana’s state seizure law doesn’t require police to report those seizures to the federal background check database. That means even in a state that allows more permanent gun confiscation, an individual can just go out and buy a new gun without obstacle. To address this issue, Connecticut bolstered its law this year to require all gun seizure records to be entered into the federal database. The state’s gun permit law also considers a seizure order a basis for denying a permit.
Those who are temporarily committed cannot have their guns seized. Individuals who are subject to long-term involuntary commitment lose their gun rights under federal law and at least 21 state laws. But some federal courts have ruled that a temporarily involuntary psychiatric evaluation should not be a basis for losing gun rights. The new mental health consortium report recommends a middle-ground solution that factors in an assessment of dangerousness. It calls for those admitted for short-term involuntarily hospitalization to be prohibited from possessing or purchasing guns temporarily, if they are deemed a danger to self or a danger to others. The report also recommends another assessment on the likelihood of relapse before restoring that individual’s gun rights.
Many of these problems reveal themselves in the course of mental health evaluations, and it is mental health privacy laws that sometimes prevent more information from entering background checks. New York’s new gun reform law, for example, includes a controversial proposal to require mental health professionals to report anyone who “is likely to engage in conduct that would result in serious harm to self or others,” which may lead to a revocation of a gun permit. And President Obama initially floated a similar proposal after the Newtown mass shooting.
But laws that focus just on mental illness as a proxy for violent propensities are both over- and under-inclusive. In Connecticut, for example, out of 180 instances of gun confiscations from people who appeared to pose a risk of “imminent personal injury to self or others,” less than 40 percent involved serious mental illness.
That’s why the new public health consortium’s report focuses on assessments of dangerousness, and calls for expansions of background checks to account for violent propensities in other ways, including banning gun possession for conviction of a violent misdemeanor and those subject to a temporary domestic violence restraining order.