Mayors Against Illegal Guns Comments on Mental Health Gun Rules

by Mayors Against Illegal Guns

April 7, 2014

Mayors Against Illegal Guns submitted this comment to ATF to urge the agency to modernize its rules implementing the federal firearms prohibitions on individuals who pose a danger to themselves or others because of mental illness. The proposed rule changes would facilitate the sharing of information on the dangerously mentally ill with the National Instant Criminal Background Check System, a critical tool in preventing dangerous persons from obtaining access to firearms.

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April 7, 2014
Mr. George M. Fodor
United States Department of Justice
Bureau of Alcohol, Tobacco, Firearms, and Explosives
Room 6.N-523, Enforcement Programs and Services
99 New York Avenue NE
Washington, D.C. 20226
Re: Comments of Mayors Against Illegal Guns on Docket ID ATF-2014-0002-0001:
Amended Definition of “Adjudicated as a Mental Defective” and “Committed to a
Mental Institution,” 79 Fed. Reg. 774 (proposed January 7, 2014)
Dear Mr. Fodor:
Mayors Against Illegal Guns (“MAIG”), a national, bipartisan coalition of mayors across the
country and the country’s largest gun violence prevention advocacy group, submits this comment
on the United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and
Explosives’ (“Department”) Notice of Proposed Rulemaking (“NPRM”), which proposes to
modify the definitions of “adjudicated as a mental defective” and “committed to a mental
institution” set forth in 27 C.F.R. § 478.11. Adoption of the proposed rule will facilitate the
sharing of life-saving information with the National Instant Criminal Background Check System
(“NICS”), which is a critical tool in preventing those individuals who may pose a danger to
themselves or others from obtaining access to a gun.
For several years, MAIG has researched the failure of states to submit mental health records to
NICS. In 2011, MAIG published a groundbreaking report describing the problem, its scope, and
its potential solutions. This report is attached to this comment as Exhibit A. MAIG has found a
troubling and extensive failure of the states to submit prohibiting mental health information to
NICS, and, because the effectiveness of the background check system depends on the
comprehensiveness of the records it contains, this failure of the states has critically undermined
the system.
Fortunately, many states have improved their submission of mental health records in response to
MAIG’s research. But gaps remain. The Department’s proposed rule will provide additional
guidance to states and federal agencies about what records they are obligated to report, thus
facilitating more comprehensive information-sharing with NICS.
For these reasons and as elaborated below, MAIG strongly urges the Department to adopt the
proposed rule. In addition, we propose an additional modification of the definition of
“committed to a mental institution.”
1. NICS Is a Critical Part of Federal Gun Safety Laws.
Since the passage of the Gun Control Act in 1968, federal law has prohibited the sale and
possession of firearms to several categories of people. Among these categories are individuals
subject to what is commonly called the “mental health prohibitor.” The federal mental health
prohibitor bars gun purchases or possession only by:
1) individuals who have been “adjudicated as a mental defective”; and
2) individuals who have been “committed to a mental institution.”
These two qualifying conditions are further defined in the Department’s regulations that are the
subject of this NPRM, at 27 C.F.R. § 478.11.
In order to effectively implement the Gun Control Act, Congress enacted the Brady Handgun
Violence Prevention Act in 1993, which established NICS. The background check system is a
critical tool for enforcing these federal prohibitors, through a nearly instantaneous electronic
background check performed when an individual purchases a gun from a licensed gun dealer.
Since its inception in 1998, NICS has blocked over two million prohibited firearms purchases in
the United States, making it an integral part of effective enforcement of the Gun Control Act and
a central component to preventing gun violence.
2. The Failure of States to Report Records to NICS is a Serious and Ongoing Problem
with Tragic Results.
The public safety benefits of NICS are only as strong as its records are comprehensive, and a
lack of clarity in the relevant regulations may contribute to the current gaps in state reporting.
Some of this failure to report appears to stem from ill-informed interpretations or confusion
related to the regulatory definitions of “adjudicated as a mental defective” and “committed to a
mental institution.”
The costs of this confusion and subsequent failure to submit relevant records are all too real and
painful. More than a year before carrying out the most deadly school shooting in U.S. history,
Seung Hui Cho was found by a Virginia judge to be a danger to himself or others, which
definitively placed him in the category of individuals subject to the federal mental health

18 U.S.C. § 922(g)(4) and (d)(4).
prohibitor. However, Virginia never submitted his name and records to NICS, and he was able
to pass multiple background checks and easily purchase the guns he used to kill 32 people at
Virginia Tech in 2007.2
Unfortunately, the failure involving Cho’s prohibiting mental health records is not unique. In
November 2008, in Miles City, Montana, 26-year-old Catherine Woods was shot and killed by
her former boyfriend, Justin Schiller, before he turned the gun on himself. Earlier that same
year, Schiller had been found by a court to be a danger to himself and was involuntarily
committed to a state hospital, making him prohibited by federal law from buying or possessing
Yet, because his record was not submitted to NICS, he was able to walk into a gun store,
pass a background check, and buy a gun.
In 1998, Russell Weston passed a background check and successfully bought guns from an
Illinois dealer, despite having been involuntarily committed by a court order to a Montana state
hospital in 1996. He proceeded to shoot and kill two United States Capitol police.4
Also in
1998, Lisa Duy was involuntarily committed to a mental hospital by a judge after she threatened
to kill a Federal Bureau of Investigations (“FBI”) agent. But a year later, because no record of
her commitment had been submitted to the background check system, she passed a check and
bought a handgun from a licensed arms dealer in Utah. Less than two hours after buying the
gun, she opened fire at a local television station, killing a young mother.5
More robust reporting to NICS would prevent persons such as Cho, Schiller, Weston, and Duy
from slipping through the cracks and passing background checks. Connecticut’s experience
demonstrates how. After Connecticut began submitting mental health records to NICS
approximately a decade ago, the violent crime rate in the state among those with severe mental
illness declined by nearly 70 percent.

A stronger NICS can also help to stem the epidemic use of guns in suicides in the United States.
Suicides account for more than half of all gun deaths and are frequently related to mental illness:
according to the American Association of Suicidology, more than 90 percent of those who die by
suicide have one or more mental disorders,
and a study of people with severe mental illness in

2 Michael Luo, U.S. Rules Made Killer Ineligible to Purchase Gun, N.Y. TIMES at A1 (April 21, 2007), available at
3 Laura Tode, Victims in Miles City Shooting Identified, THE BILLINGS GAZETTE (Nov. 23, 2008), available at
4 David Kohn, Armed and Dangerous: Should the Mentally Ill Buy Guns?, CBS NEWS (Oct. 10, 2002), available at
Fox Butterfield, Hole in Gun Control Law Lets Mentally Ill Through, N.Y. TIMES Archives (April 11, 2000),
available at
Swanson et al., Preventing Gun Violence Involving People with Serious Mental Illness, in REDUCING GUN
VIOLENCE IN AMERICA 37-50 (Webster et al. eds., 2013).
7 AMERICAN ASSOCIATION OF SUICIDOLOGY, SUICIDE IN THE USA: BASED ON 2010 DATA 2 (2012), available at; see also Conwell et al., Suicide and Aging: Patterns of Psychiatric Diagnosis, INTERNATIONAL
PSYCHOGERIATRICS 7(2), 149-64 (1995).
Great Britain found they were 12 times more likely to commit suicide.8
In an investigation into
the prevalence and risks of suicide across 17 countries, researchers concluded that the presence
of a prior mental disorder was associated with a significantly increased risk of suicidal behaviors,
and the presence of a mental disorder was associated with significantly increased risk in all 17 of
the countries studied.9

Beginning in 2011, MAIG undertook extensive and ongoing research to determine why states
were not submitting critical mental health information to the background check system,
reviewing substantial FBI data regarding collection of state NICS records.
As of May 2013, 15
states had submitted fewer than 100 mental health records, and 12 of these states had submitted
fewer than 10.11
While there has been improvement in the overall number of records submitted
to NICS in recent years, this is due in large part to the efforts of a few states, rather than a
collective increase nationwide. Between October 31, 2012 and May 31, 2013, more than one
million additional records were added to the NICS, but 87% of those records came from just two
states, Pennsylvania and New Jersey.
Wide disparities thus still persist among the states as to the number of records submitted, and
these disparities compromise the effectiveness of NICS as a tool to protect public safety and save
lives. Through its research, MAIG has found that confusion about who is subject to the mental
health prohibitor and what records can or should be submitted is a significant reason why many
states are not submitting critical mental health records.
3. The Proposed Rule Will Provide Clarity and Encourage Submission of Additional
Mental Health Records to NICS.
The proposed definitions in this NPRM will generally clarify the relevant statutory definitions
and eliminate confusion, thus increasing submissions of mental health records and creating a
more effective background check system. MAIG therefore urges adoption of the proposed
definitional language. In addition, MAIG urges the inclusion of further clarifying language
related to the definition of “committed to a mental institution,” which would make clear that this
term also includes individuals who are found to meet applicable state law requirements for
involuntary commitment and then voluntarily agree to submit to such treatment.

8 Dutta et al., Reassessing the Long-term Risk of Suicide After a First Episode of Psychosis, ARCH. GEN.
PSYCHIATRY 67(12), 1230-37 (2010).
9 Nock et al., Cross-National Prevalence and Risk Factors for Suicidal Ideation, Plans, and Attempts, BR. J. OF
PSYCHIATRY 192, 98–105 (Feb. 2008).
10 Fatal Gaps: How Missing Records in the Federal Background Check System Put Guns In the Hands of Killers
(Nov. 2011), at 1 (attached as Exhibit A).
11 These 15 states are: Alaska, Hawaii, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nebraska, New
Hampshire, North Dakota, Oklahoma, Rhode Island, South Dakota, Vermont, and Wyoming.
a. The Proposed Definition of “Adjudicated as a Mental Defective” Furthers
Congressional Intent and Will Help Resolve Ambiguities that May Prevent
Submission of Mental Health Records.
The proposed definition makes clear that “adjudicated as a mental defective” includes persons
who are found incompetent to stand trial or not guilty by reason of mental disease or defect, lack
of mental responsibility, or insanity, as well as persons found guilty but mentally ill. It would
also helpfully clarify that federal, state, local, and military courts are all lawfully and equally
empowered to make the types of determinations that qualify a person as “adjudicated as a mental
The proposed change to the definition would make clear that persons found incompetent to stand
trial or not guilty by reason of mental defect or disease, lack of mental responsibility, or insanity,
are subject to the mental health prohibitor if that finding was made by a federal, state, local, or
military court and would firmly establish that these adjudications are equally prohibiting whether
they are made by a military or civilian court. This change recognizes that federal, state, and local
court systems are involved in the types of adjudications that may result in an individual
becoming subject to the mental health prohibitor and will help to clarify the definition,
particularly for court systems that may be withholding vital information from NICS.
Finally, the proposed clarification would also ensure that in those states where courts may find a
defendant guilty but mentally ill (in lieu of a finding of not guilty by reason of insanity), the
consequences of such a finding are the same as being found incompetent to stand trial or not
guilty by reason of mental defect or disease, lack of mental responsibility, or insanity. Again,
this clarification is consistent with the uniform application of the prohibitor across states and will
assist states in understanding which mental health records must be submitted.
b. The Proposed Definition of “Committed to a Mental Institution” Provides
Important Clarification Regarding Involuntary Outpatient Treatment And
Should Be Further Elaborated.
The proposed rule’s provisions related to the definition of “committed to mental institution”
should be adopted, with an additional modification.
The proposed rule would clarify that the statutory term “committed to a mental institution”
applies to involuntary inpatient or outpatient treatment, a critical explanation necessary to ensure
that the mental health prohibitor has the effect intended by Congress. A requirement that a
mentally ill person participate in involuntary outpatient commitment because he or she is likely
to endanger him- or herself or others should have the same prohibiting effect as a requirement
that such a person participate in such treatment on an inpatient basis.
Involuntary outpatient commitment is an important tool to reduce violent behavior: it can
substantially reduce violent behavior in persons with severe mental illness, in part by improving
adherence to medications while diminishing substance misuse.12
There are many other reasons
why mandatory outpatient treatment is commonly ordered in lieu of involuntary inpatient
hospitalizations. Outpatient treatment may be more far more effective in specific circumstances,
particularly where there is strong family support. Courts may order persons with family support
to receive treatment in the home because an integrated approach to treatment may be more
effective for long-term mental health care. Moreover, court-ordered medication of a patient in
the home can avoid the costs, disruptions, and trauma of an inpatient commitment designed to
achieve the same involuntary medication. Because outpatient treatment may be less costly than
hospitalization, insurers are often less likely to balk at coverage as well.
These circumstances that may lead a judge to order an involuntary outpatient commitment do not
alter the fact that a court-ordered commitment has occurred, nor do they bear on the danger an
individual poses to him- or herself or others due to severe mental illness. Clarifying that the
statutory meaning of commitment does include involuntary outpatient treatment will help to
ensure that critical information is included in the NICS.
Some states already recognize that individuals who receive involuntary outpatient care should be
subject to their firearm possession prohibition statutes. Following the Virginia Tech shooting,
for example, Virginia amended its laws to prohibit gun ownership based on involuntary
outpatient commitment because the Virginia Tech shooter was able to purchase guns used in the
mass shooting despite having previously been ordered to receive outpatient treatment for mental
illness. 13
The proposed clarification would ensure that this common-sense public safety policy
is followed nationwide.
MAIG recommends that the final rule include further clarifying language making clear that
“committed to a mental institution” also includes commitments of persons who voluntarily
commit themselves after an involuntary examination, provided that the individual would have
been involuntarily committed had they not voluntarily submitted to such treatment. Florida law
provides a model for such clarifying language: Florida defines “committed to a mental
institution” to include voluntary admission to a mental institution if (a) the voluntary admission
follows an involuntary examination in which the examining doctor finds the person to be an
imminent danger to him- or herself or others; (b) the doctor certifies that the person would have
been involuntarily committed if he or she had not voluntarily agreed to treatment; and (c) a judge
or magistrate has reviewed and confirmed the determination that the person is a danger to himor
herself or others.14
Notably, the Florida model enjoys support not only from gun violence
prevention advocates, but also from the gun rights community.

12 Swanson et al., Involuntary Out-Patient Commitment and Reduction of Violent Behavior in Persons with Severe
Mental Illness, BR. J. OF PSYCHIATRY 176, 324-31 (April 2000).
13 Va. Code Ann. § 18.2-308.1:3 (“It shall be unlawful for any person involuntarily . . . ordered to mandatory
outpatient treatment . . . or ordered to mandatory outpatient treatment as the result of a commitment hearing . . . to
purchase, possess or transport a firearm.”).
14 Fla. Stat. § 790.065(2)(b).
MAIG urges the Department to include equivalent language in the final rule. A person who has
been deemed to require involuntary commitment by a medical professional and a court of law
should not be able to avoid the prohibition in 18 U.S.C. § 922(g)(4) and (d)(4), by preemptively
submitting to voluntary admission to a hospital before involuntary commitment can be
4. Recommendation.
For the reasons expressed above, MAIG supports the adoption — and strengthening — of the
proposed rule and its clarification of the definitions of “adjudicated as a mental defective” and
“committed to a mental institution.” MAIG appreciates the Department’s efforts in developing
the proposed rule and thanks the Department for the opportunity to offer these comments on the
Respectfully submitted,
Elizabeth Avore
Senior Counsel
Mayors Against Illegal Guns

15 See, e.g., Florida Alert! Urge Governor Scott to Sign HB-1355, NATIONAL RIFLE ASSOCIATION-INSTITUTE FOR