04/21/2007

By MATTHEW BARAKAT  / Associated Press

Virginia authorities have submitted the names of more than 80,000 people with legally certified mental health problems to the FBI to ensure they don't buy guns. That's more than any state in the country.

Unfortunately, the name of Seung-Hui Cho was not among them.

Under federal law, Cho should have been a prohibited buyer whose name was included in the national database maintained by the FBI for instantaneous background checks on gun purchases.

But Virginia State Police, which feeds the names to the FBI, never received Cho's name because Virginia uses its own, more narrow standard for judging whether an individual's mental illness merits a prohibition on gun purchases.

The federal law bars handgun purchases by those judged "mentally defective," and a December 2005 judge's ruling that Cho "presents an imminent danger to himself as a result of mental illness" is a textbook definition meeting the federal regulations.

But Virginia law bars handgun purchases to those judged "mentally incapacitated," a phrase that's not been interpreted as broadly.

A court clerk in Montgomery County, where Virginia Tech is located, said court officials typically submit records to Virginia State Police only when an individual is committed to a psychiatric hospital. That didn't happen in Cho's case; he was only ordered to undergo an evaluation and outpatient treatment.

As a result, Cho, 23, of Centreville, passed background checks and purchased two guns in February and March. He used the guns to kill 32 people on the Virginia Tech campus Monday before committing suicide.

Lt. William Reed, a supervisor in the state police Criminal Justice Information Systems, which oversees the background-check database, said state police procedures fully comply with state law, and that the FBI has never complained about how Virginia supports the national database.

He said if there's some discrepancy between the definitions of "mentally defective" and "mentally incapacitated," then it would be up to a legal authority or the federal government to inform state police.

"It sounds like a bunch of legal mumbo-jumbo to me," Reed said.

As recently as Thursday, the FBI praised Virginia for its work in providing names to the National Instant Criminal Background Check System (NICS) database.

"Virginia is the leading state in reporting mental defective entries for the NICS index," the FBI said in a press release.

An FBI spokesman did not return calls and e-mails seeking comment Friday.

Generally, states aren't obligated to provide any names to the FBI database following a 1997 U.S. Supreme Court ruling that requiring states to do the legwork is a violation of states' rights.

In some states, the FBI tracks down names itself. By some estimates, millions of names that belong in the database have never been added.

Virginia is one of about a dozen states that's agreed to serve as a point-of-contact state — essentially volunteering to track down the appropriate names for the feds' database.

In so doing, Virginia committed itself to applying the federal standards, and therefore should have been submitting the names of people like Cho, said Denis Henigan, legal director of the Brady Center to Prevent Gun Violence.

"If Virginia is not submitting these records, then it is misinterpreting federal law," Henigan said.

He also said the Justice Department, which includes the FBI, bears some responsibility for ensuring that states are properly interpreting the rules.

Virginia Del. Mark Sickles, D-Fairfax, who this year submitted unsuccessful legislation to tighten access to firearms by the mentally ill, said Virginia needs to ensure it's meeting federal standards.

"We absolutely need to look into ... the database" to ensure everybody who should be prohibited is included, he said. While the General Assembly has traditionally been hostile to firearms regulation, he said the tragedy at Virginia Tech may change the debate in Richmond.

It's not entirely clear how many people who, like Cho, fall into the cracks and don't make it into the federal database. James Reinhard, commissioner of the state's mental health department, said about 9,000 temporary detention orders are issued each year.

In all of those cases, a judge or special justice must make a finding about an individual's mental health. There are no statistics on how many of those cases result, like Cho's, in a finding of imminent danger but a failure to hospitalize.

Also, even if Cho had flunked the background checks, he theoretically could have bought a gun from a private seller at a gun show.