N.C. lets mentally ill avoid gun list: State doesn't report those committed

Jim Nesbitt and Jessica Rocha, Staff Writers

Thousands of people involuntarily committed to psychiatric institutions by North Carolina courts aren't in a national database aimed at preventing gun sales to people with dangerous mental illnesses.

Although it is a felony to knowingly sell a gun to anyone so troubled, North Carolina court clerks keep commitment records under wraps because of privacy provisions in state mental health statutes. That means they don't show up in the FBI-run National Instant Criminal Background Check System that gun dealers and law enforcement use to determine whether a customer can legally purchase a firearm.

"We have no authority or directive to report this information to anybody," said Dick Ellis, spokesman for the N.C. Administrative Office of the Courts, which oversees courthouse operations. "Unless we're told directly to do so, we don't give our records over to anybody."

After last week's killing spree at Virginia Tech University by student Seung-Hui Cho, the availability on the NICS database of involuntary commitment orders and other court rulings related to mental health has become a major issue. Privacy concerns are pitted against public safety fears.

Despite a 2005 court declaration that Cho was a danger to himself, he was able to legally purchase two handguns he used to kill 32 people and himself at Virginia Tech. A Virginia judge ordered Cho to undergo a mental health evaluation, but the ruling didn't show up on the background check.

Federal law prohibits gun sales to people who fall into 10 categories, including felons, illegal immigrants, subjects of domestic violence restraining orders and anyone committed to a mental institution or ruled "mentally defective."

But the 10-year-old background check system depends on states to forward information, particularly court orders related to mental health. In the year ending last July, there were 56,124 confidential special proceedings in North Carolina courts. Those included involuntary and voluntary commitments to mental institutions but also hearings to suspend the licenses of attorneys, according to records with the N.C. Administrative Office of the Courts.

Experts say legislators have created exemptions to the mental health privacy provisions, including a requirement that courts report commitments for substance abuse to the Department of Motor Vehicles. Unless legislators provide a similar exemption for the database, court clerks won't give up those records, Ellis said.

Two ways to get in

As a result of this cloak of privacy, North Carolina mental health filings to the NICS database fall primarily under two categories, said John Aldridge, special deputy attorney general and leading authority on state firearms law. Both depend on the diligence of the local official in charge of the records.

One is an open court result in a criminal case, such as being found not guilty by reason of insanity. The other is a record of being turned down by a sheriff for a pistol-purchase permit or concealed-carry permit.

North Carolina sheriffs, who are responsible for background checks on applicants for both permits, can check commitment records on concealed carry permits because applicants waive their privacy rights. They aren't allowed to check commitment records for pistol purchases but may learn of such orders by other means and deny permits.

It's also up to sheriffs to decide whether to forward permit denials to the NICS database. So far, North Carolina sheriffs have forwarded 319 mental-health-related denials since the database was created in 1998, Aldridge said.

House ponders change

Today, the state House will consider a bill that would allow sheriffs to inform other sheriffs if they deny a pistol permit for mental health reasons.

Though it keeps involuntary commitments confidential, North Carolina is one of 22 states that report mental-health related information to the NICS, federal officials say.

But the number of North Carolina filings pales beside the 80,000 mental-health-related entries that Virginia has made in the NCIS database.

Since the Virginia Tech killings, there have been calls to make involuntary commitment orders an exception to medical privacy laws -- something both mental health advocates and gun rights adherents successfully opposed in 2002 when the measure was introduced in North Carolina.

"We need to lower the threshold so that all people who show signs of being a danger to themselves or others are reported," said Lisa Price, executive director of North Carolinians Against Gun Violence, a gun-control group that pushed the 2002 legislation as part of an anti-gun-trafficking package. "Keeping guns out of the wrong hands -- that's our goal."

F. Paul Valone, president of Grass Roots North Carolina, a gun rights organization, vows to fight any attempt to remove the confidentiality cloak from involuntary commitment orders.

"The intention behind that legislation was to foment additional gun control in North Carolina, and we won't tolerate that," Valone said.

Mark Botts, an expert on mental health records and confidentiality at the UNC-Chapel Hill School of Government, said legislators already have written several exemptions into the law, including the DMV measure. Sealed court records relating to mental health treatment are also legally shared for child or elder-abuse investigations and can be unsealed if the information is considered in the public interest.

In the wake of the Virginia Tech massacre, Botts said a similar exemption should be made for the gun database.

"I don't think it has to be that polarizing," he said.