Mentally ill: Why some can get guns even with background checks

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Mentally ill: Why some can get guns even with background checks

CREATED Mar 6, 2013

Reporter: Craig Smith

TUCSON (KGUN9-TV) - Families torn by gun violence, pleading for tougher laws, are at odds with some gun rights activists fearful new laws will take their rights.
But they seem to agree on one point:  do more to keep guns away from the mentally ill.
But can the system even identify most of the people too mentally ill to buy a gun?  9 On Your Side found out background checks won't identify a lot of the mentally ill.

For January 8th victims, pain and loss have sent them on a mission to do all they can to save others from the grief they know----the grief Emily Nottingham knows when she remembers her son Gabe Zimmerman.

"It's very hard for me to be here today; here where my son was gunned where his body laid on that sidewalk for many hours...dead"
They are pushing hard to keep a gun away from the next madman like Jared Loughner, through better background checks that would find and forbid someone mentally ill from buying a gun.
But a background check didn't stop Loughner from getting a gun.
Attorney Thomas Jacobs knows why.  He says before someone with mental problems loses the right to a gun, and before he makes it into any database, a judge has to rule that person mentally unfit.

KGUN9 reporter Craig Smith asked him: "Say you've got somebody who has serious mental problems but he has never been handled by the legal system; if that's the case, the mechanics do not exist to get this person declared a prohibited possessor.  Is that correct?" 

Jacobs: "That is correct."
And Jacobs says HIPAA, the federal health privacy law may block mental health professionals from reporting someone they think may turn dangerous.

"The best example, actually, was the individual who went crazy at Virginia Tech and killed over 30 people.  That troubled young man had a history of mental illness and he had been diagnosed as mentally ill but he hadn't been adjudicated incompetent."
Jacobs says even if a court does rule someone mentally incompetent courts don't always report that to background check databases.  He says existing laws will work with better information sharing.

"So we can put that into a single database and the people who sell the guns can be better informed."

Jacobs says if mental health professionals, or attorneys feel a patient or client is an immediate, right now threat, they can break confidentiality and report them in a way that could lead to a mental health commitment.  That could also lead to a judge's ruling that would make them ineligible for a gun. But there is no legal requirement for them to do that.

Other issues that would prohibit someone from having a gun are more clear-cut.

If someone has a felony conviction or they're charged with a felony, that's a clear cut status that forbids having a gun, and it's more likely to make it into a data base.  Domestic violence is another example.