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1 April 7, 2014 SUBMITTED VIA FEDERAL E-RULEMAKING PORTAL 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 Re: Comments of Mayors Against Illegal Guns on Docket ID ATF : 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 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 1

2 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. 1 These two qualifying conditions are further defined in the Department s regulations that are the subject of this NPRM, at 27 C.F.R 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 1 18 U.S.C. 922(g)(4) and (d)(4). 2

3 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 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 guns. 3 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 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. 6 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, 7 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 5 Fox Butterfield, Hole in Gun Control Law Lets Mentally Ill Through, N.Y. TIMES Archives (April 11, 2000), available at 6 Swanson et al., Preventing Gun Violence Involving People with Serious Mental Illness, in REDUCING GUN VIOLENCE IN AMERICA (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), (1995). 3

4 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. 10 As of May 2013, 15 states had submitted fewer than 100 mental health records, and 12 of these states had submitted fewer than 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), (2010). 9 Nock et al., Cross-National Prevalence and Risk Factors for Suicidal Ideation, Plans, and Attempts, BR. J. OF PSYCHIATRY 192, (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. 4

5 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 defective. 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 5

6 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 Swanson et al., Involuntary Out-Patient Commitment and Reduction of Violent Behavior in Persons with Severe Mental Illness, BR. J. OF PSYCHIATRY 176, (April 2000). 13 Va. Code Ann :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 (2)(b). 6

7 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 effectuated. 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 NPRM. Respectfully submitted, /s/ 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 LEGISLATIVE ACTION (June 2013), 7