Did Cho Buy the Guns Legally?

The disclosure that Virginia Tech shooter Cho Seung-Hui was once involuntarily detained for mental illness may change the typical debate over gun control that inevitably follows gun-related tragedies.

At the time Cho legally purchased the weapons used in the shootings, he had no criminal history and was a permanent legal resident with a green card. He followed the law and underwent the required background checks. Thus, in the  immediate aftermath of the shootings, law-enforcement officials said there was nothing that would have prevented him from buying the guns—short of major changes to the gun laws that most members of Congress were clearly not ready to support.

Were they wrong? Contrary to initial reports, Cho may not have been legally eligible to acquire the two semi-automatic weapons that he used to murder more than 30 students at the school on Monday. Critics say Cho was able to collect his firearms without a hitch because of a gaping hole in the enforcement of existing federal gun laws that routinely allows mentally unstable people to buy deadly firearms.

In the three months before the shooting, Cho bought two handguns: a Walther .22 that he picked up on Feb. 9 at a Blacksburg pawnshop, and a second, more powerful, Glock 9mm, purchased on March 16 at a Roanoke firearms store. Cho filled out the required federal form, and a federally-mandated background check was conducted by the Virginia state police. But he was immediately cleared to buy the guns when no “hits” showed up in police data bases indicating he had any history of criminal activity.

That has led Virginia state police officials to declare that Cho’s firearms purchase were perfectly legal. But the same 1968 federal gun law that bars convicted criminals from buying firearms (passed in the wake of the assassinations of Martin Luther King Jr. and Robert F. Kennedy) also prohibits gun purchases by those who have a history of mental illness. Indeed, when Cho bought the guns, he had to answer the following question on Bureau of Alcohol, Tobacco and Firearms Form 4473: “Have you ever been adjudicated mentally defective or … committed to a mental institution?” Cho answered “no.”

According to court records that surfaced Wednesday, April 18, Cho had begun to show clear signs of mental instability long before he bought the guns. A Virginia magistrate issued a temporary detention order for Cho in December 2005. In so doing, the magistrate found that Cho presented “an imminent danger to self or others as a result of mental illness, or is so seriously mentally ill as to be substantially unable to care for self and is incapable of volunteering or unwilling to volunteer for treatment.”

The magistrate acted after Cho was taken to—and evaluated by—a local psychiatric hospital, following complaints to Virginia Tech campus police made by two female schoolmates. The two women said that Cho was contacting them with “annoying” telephone calls and e-mail messages. When campus police got a phone call from another acquaintance of Cho’s, expressing concern that he was suicidal, they sought and obtained the temporary detention order from the magistrate in the Montgomery County Juvenile and Domestic Relations Court. Cho was then voluntarily but briefly admitted to Carilion Saint Albans, a local psychiatric hospital doctor there reported that Cho was "depressed" but “denies suicidal ideations" and did not "acknowledge symptoms of a thought disorder,” according to records obtained by the Richmond Times-Dispatch.)

Since Cho was never “committed to a mental institution”—but rather was only briefly detained for evaluation—Virginia officials continued to insist today that even this incident was not a barrier to his buying a gun. "An individual who is detained for evaluation under a Temporary Detention Order" but who is referred for outpatient care "is not prohibited from purchase under the applicable state laws," said Donna Tate, manager of the Firearms Transaction Center for the Virgnia state police.

But Kristen Rand, an analyst with the Violence Policy Center, a gun-control advocacy group, points out that the other criteria in the 1968 federal law—whether the gun applicant has been “adjudicated as a mentally defective”—seems to apply to Cho’s circumstances. The definition of "mentally defective" under a federal regulation states that it applies to anybody who has been determined by a “court, board, commission or other lawful authority” to have been a “danger to himself or others.”

“I don’t think it could be any more clear cut. He was not eligible to buy those guns,” says Rand.

But Rand and others—including federal officials—say that enforcement of the provision in the law barring the mentally ill from buying handguns has been erratic at best. More than 20 states don’t report any mental health records—including court records of mental commitments—to the FBI’s National Instant Criminal Background Check System (NICS), the central federal database for background checks on firearm purchases, according to Paul Bresson, a FBI spokesman. Other states, including Virginia, do report some records, but officials acknowledge that the state and federal databases are incomplete. Asked if Virginia should have submitted a record of the Temporary Detention Order on Cho to the bureau,  Bresson responded: "We rely on the state to submit the data to us. We don't interpret the law. All we're doing is providing a database for them." Still, Bresson added, "based on what we now know, it would seem that it would have been a record that should have been in the NICS.”

The gun lobby—typically opposed to any attempt to tighten federal gun controls—doesn't disagree. The National Rifle Association has decided to make no public comment about any aspect of the Virginia Tech tragedy, according to a spokesman. But a source close to the gun lobby (who asked not to be identified because of the organization’s sensitivities about making any political points related to the tragedy), pointed out that pro-gun lobbyists and groups like the NRA have long supported adding all relevant mental-health records to background check databases. "We have no problem as long as one is adjudicated mentally incompetent [in denying gun purchases] and we have no problem with mental health records being part of the NICS," the source said. "The problem is not with the gun community. The problem is with the medical community" that has traditionally opposed making such records available on privacy grounds.

Whatever the reason, Rep. Carolyn McCarthy of New York, contends that  every year thousands of gun purchases by mentally unstable and other unqualified people have been falling through the cracks. McCarthy has been sponsoring legislation that would offer incentives to states to report more records of mental illness and commitments to federal and state databases.

The issue isn’t new. McCarthy began sponsoring the bill four years ago, after a mentally unstable constituent killed a few parishioners and a priest at a church in her Long Island district. Lawmakers in Washington are certainly aware of the problem. In 1998, a man named Russell Weston killed two police officers in a shootout at the U.S. Capitol, using a .38-caliber gun that he had acquired with a gun permit he got from his home state of Illinois. When he filled out his federal form, he answered, like Cho, that he had no record of mental illness. Illinois officials were unaware that Weston had been ordered to a mental institution for a 90-day evaluation in Montana two years earlier. Why didn't they know? Montana's strict privacy laws prevent the reporting of commitments to law enforcement. The gap in reporting was duly noted in some news stories at the time, and quickly forgotten, until this week.