How SC keeps mental-health data from gun database

Lack of state data and flawed federal system mean guns can get into wrong hands, critics say

gsmith@islandpacket.comFebruary 16, 2013 

Alice Boland

South Carolina is not passing critical information about residents with mental illness along to the federal government, leaving the door open for potentially violent people to buy firearms, critics say.

This lack of a sharing, paired with a flawed federal system, could one day yield deadly results, according to a growing chorus of state leaders, lawmakers and parents.

Their proof: the Feb. 4 incident outside a school in downtown Charleston, in which authorities say a Lady's Island woman with a well-documented history of mental illness, outlined in court records, pulled a handgun from her purse and began pulling the trigger as she was approached by employees and as school children stood nearby.

Alice Boland aimed the loaded .22-caliber Taurus at an administrator and teacher, according to police reports, but it did not fire because none of the eight rounds were in the chamber.

S.C. lawmakers and others say they're stunned that Boland was able to walk into a Walterboro gun store, pass a federally required background check and buy the gun, just three days before the event.

"This Ashley Hall incident could have been a horrific national tragedy," state Attorney General Alan Wilson said. The state's top lawyer is joining a couple of state lawmakers, who will roll out new legislation Tuesday requiring the state to share more mental-health information with the federal government. "We're in a minority of states who haven't addressed a huge problem. South Carolina has a moral obligation, a duty to fix this."

South Carolina is one of 12 states that does not report mental health data to the federal government and is one of six states with no laws limiting those who are mentally ill from purchasing firearms in certain circumstances, Wilson said.

Changes to federal law could be coming, as well.

Boland's mental-health history is outlined in federal court documents, not in state documents. It will take changes to federal law to keep guns out of the hands of those tried in federal court, according to Wilson's office.

S.C. Sen. Lindsey Graham said last week he will propose federal legislation to prevent those with troubling mental-health backgrounds from getting guns. Graham's spokesman, Kevin Bishop, says the legislation will include a prohibition on gun purchases by those who have pleaded not guilty by reason of insanity, even if the criminal charges are dropped -- as was the case with Boland.

S.C. NOT SHARING MENTAL-HEALTH INFORMATION

South Carolina rarely provides mental health records to an FBI database for gun background checks.

That means the FBI cannot enter that information into a database, called the National Instant Criminal Background Check System or NICS. Gun-store owners around the country rely on the database to alert them when a potential buyer is ineligible to purchase a gun.

It's up to state governments to share their data including mental-health records, proof of citizenship, criminal and drug-abuse histories and more.

The database apparently did not turn up Boland's 2005 federal indictment, in which she was accused of threatening to kill President George W. Bush and members of Congress. A federal judge sent her to a Texas prison facility for female mental patients, according to court records.

And the background check probably didn't show that Boland pleaded innocent by reason of insanity in 2009.

The charges were dropped after the plea, a deal that means Boland has no felony criminal history, according to a check by the S.C. State Law Enforcement Division.

The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives has said there was no misconduct or illegal activity in the purchase and transfer of the firearm from the licensed dealer, leading to speculation that the information was not in the database.

That would have cleared the way for the Walterboro gun shop to legally sell the firearm to Boland.

South Carolina shared only 17 mental-health records from the time the database came into existence in 1998 to October 2011, according to a report by Mayors Against Illegal Guns, a coalition of mayors from across the nation working to help law enforcement target illegal guns. Eighteen other states provided even fewer records, according to the report.

Colin Miller, a law professor at the University of South Carolina's law school, said the NICS system does not provide adequate information that gun stores and others who sell firearms need.

"There is a lot of information that should be there that isn't. There is a lot of missing data," Miller said. "There are a lot of reasons why it's not there. Bureaucracy, red tape. And there's not anything that incentivizes states to provide that information to NICS.

"And there are no enforcement mechanisms to punish them for not providing it."

Officials in some states say the federal Health Insurance Portability and Accountability Act prevents them from turning over such records to the FBI. They also say there is no money to create a system to collect the records from health agencies and courts, and no laws requiring it.

Wilson would not speculate on why South Carolina does not do it.

"Sometimes you don't see flaws in your legal system because there is nothing drawing your eyes to it," Wilson said, adding the epidemic of school shootings around the country, including the one in Newtown, Conn., is changing that.

Other South Carolinians want the state to send such information, too. That includes parents of students at Ashley Hall, the school where Boland is accused of showing up with the gun.

More than 50 parents sent a letter to state and federal lawmakers last week, asking for the state to send more information or come up with a better plan to keep guns away from those whose mental illness could lead them to violent acts.

THE SLIPPERY SLOPE

Wilson said the state legislation to be rolled out Tuesday will seek to keep guns from people like Boland without infringing on the Second Amendment rights of other South Carolinians.

"We want to find a reasonable balance between protecting the Second Amendment rights of individuals and giving law enforcement the tools to tag someone (in the federal database) who has been identified by a court and adjudicated by a doctor, a psychiatrist, to be mentally ill," he said.

Mental-health advocates warn of a slippery slope, however. The law should be well-crafted so that those with mental ill illness and prone to violence cannot own guns, while the majority of the mentally ill, who pose no threat, retain the right to purchase a gun. Bill Lindsey, executive director of the National Alliance on Mental Illness South Carolina, an advocacy group for those living with mental illness, said he will urge his board next week to support a state bill requiring anyone involuntary committed be automatically added to the national database.

The bill is one of a flurry of similar measures being filed as a result of the Boland case.

But Lindsey cautioned that the legislation should in no way be considered a defining statement about those living with mental illness.

"Someone with a mental illness is more likely to be the victim of a crime than the perpetrator," he said.

FEDERAL LAW SHORTCOMINGS

It's also possible that, under federal law, Boland was eligible to buy a gun.

Potential gun buyers must fill out a form to determine whether they're prohibited form making the purchase. Prospective buyers must answer a series of yes-or-no questions, including one that asks if they have ever been deemed "mentally defective" by a court or committed to a mental institution.

It appears that Boland would have been disqualified from the purchase based on that question and another line that states, "any person who was adjudicated to be not guilty by reason of insanity ... in any criminal case" is barred from purchasing a gun.

But that determination might not be as simple as it seems, some state attorneys say, because:

  • Federal exemptions let some people with troubled mental health backgrounds purchase firearms.
  • In 2009, after Boland pleaded not guilty by reason of insanity, the charges against her were dropped. Mark Binkley, an attorney with the S.C. Department of Mental Health, and others, say that might have left her eligible to purchase a gun.

  • Officials with the Bureau of Alcohol, Tobacco, Firearms and Explosives and the U.S. Attorney General's Office will not say how Boland answered the question on the form, adding that the matter is still under investigation.

    Reporter Anne Christnovich contributed to this report. Follow reporter Gina Smith at twitter.com/GinaNSmith.

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    Sen. Lindsey Graham to fight to keep guns from mentally ill, Feb. 13, 2013

    Beaufort woman accused of attempted murder won't face federal gun charge, Feb. 8, 2013

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