The Mentally Ill and Guns

Presiding Travis County Probate Court No. 1 Judge Guy Herman has a reasoned approach to gun control in the wake of the Virginia Tech massacre.

Don't let people in Texas who are mentally ill buy guns legally. Guns and people who are mentally ill don't mix too well, just like beer before liquor.

Judge Guy Herman
TRAVIS COUNTY PROBATE COURT NO. 1
1000 Guadalupe Street – P.O. Box 1748
Travis County Courthouse, Room 217
Austin, Texas 78767
Phone: (512) 854-9258 Fax: (512) 854-4418
April 23, 2007

Lt. Governor David Dewhurst, President of the Senate
Sen. John Whitmire, Criminal Justice Chair, CAP 1E.13
Sen. Kel Seliger, Criminal Justice Vice Chair, EXT E1.608
Sen. John Carona, CAP 4E.2
Sen. Bob Deuell, EXT E1.706
Sen. Rodney Ellis, CAP 3E.6
Sen. Glenn Hegar, EXT E1.808
Sen. Juan Hinojosa, CAP 3E.12

Re.: SB 1755, An Act relating to the collection and dissemination of certain [mental health commitment] information for a federal firearm background check.

Dear Governor Dewhurst and Senators:

The recent tragedy at Virginia Tech University should give us pause to consider how the State of Texas handles the purchase of firearms by mentally unstable persons. Although Texas participates in the National Instant Criminal Background Check System (NICS) in order to prohibit persons convicted of felonies and domestic violence from purchasing firearms, Texas is one of several states that do not turn over mental health commitment information to the United States Department of Justice’s NICS program, thereby allowing persons committed to psychiatric hospitals to easily purchase and possess firearms despite having a court finding that they are likely to cause serious harm to themselves or to others. As the local mental health judge for over twenty years, I have had numerous cases in which the evidence showed that a committed patient had threatened to shoot the President, the Governor, the Attorney General, and even yours truly. Many of these individuals were investigated by the relevant agencies and some were referred to the mental health system by these agencies. At least one of these persons was subsequently prosecuted for possession of firearms in violation of federal law after being picked up with locally purchased rapid fire automatic weapons and after admitting to the Alcohol, Tobacco, and Firearms agency (ATF) that he was interested in killing the local mental health judge, i.e., me.

This last event led me to question how it was possible for a mentally ill person committed because of dangerousness to purchase a firearm. I was surprised to find out that Texas had never passed a law allowing the dissemination of commitment information to the NICS program despite the fact that it is a federal felony offense for a person committed to inpatient psychiatric services to purchase or possess a firearm. I also found that despite Texas law forbidding a person in violation of federal law to obtain a firearm-carrying permit, that it was easy for a mentally committed person to obtain a firearm permit in Texas because the Texas licensing authority had no method of easily checking commitment information for gun permit applicants. Texas licensing authorities check NICS for felony and domestic convictions, but rely on the applicant to divulge whether or not he or she has ever been committed to an inpatient psychiatric facility. My conversations with the Texas Department of Public Safety indicate they do not check out any mental health information because there is not an easy way of accessing the information since one would have to do so by checking the 254 county clerks’ offices on a county-by-county basis. Oddly enough, Texas law does provide a clerk’s fee for a gun purchase authorization, but no County Clerk that I am aware of has ever had any law enforcement agency inquire into commitment status of gun buyers or gun carrying permit applicants.

SB 1755 (attached) filed by Senator Rodney Ellis would mandate Texas’ participation in the mental health component of the NICS program. It was referred to the Senate Criminal Justice Committee, but has not had a hearing as of this date. Senator Ellis has worked with the Department of Public Safety to fine tune the reporting procedure. He has had a Committee Substitute prepared that has the County Clerk certifying that the commitment occurred rather than having the Clerk send the DPS a certified copy of the court’s order (the committee substitute procedure now conforms to the procedure used in felonies and domestic violence cases). As a result, the DPS has indicated to the Legislative Budget Board that the bill will have no financial impact on the State of Texas (see attachment). There should be little impact on the counties as they can use the same procedures for reporting, with forms that DPS already has on hand.

A similar bill (SB 869) was filed last session, but did not get a hearing despite its being supported by law enforcement, the judiciary, and all of the state’s major mental health advocacy groups. The only opposition last session came from the National Rifle Association, which opposed the bill because it did not address a problem they have with the federal law’s process for the restoration of the right to possess weapons. Although I am a bit unclear about the NRA’s opposition to the federal restoration procedure, I do know that we cannot change federal law by passing a state law. As noted earlier, Texas already participates in NICS in regards to felons and domestic violence perpetrators. It just seems senseless not to include in the NICS database – because of the NRA’s opposition to the federal restoration procedure – the information about those who the courts have found to be dangerous, especially since we participate in sending the information on felons and persons committing domestic violence.

The NRA has not yet taken a stance on the bill this session. While they still have concerns about the federal law’s restoration provision, they are now working on resolving that issue in the United States Congress, which of course is the proper forum to address federal law.

No one can guarantee that provision of mental health commitment information will prevent tragedies such as what happened at Virginia Tech. There will always be ways for the mentally disturbed to cause harm. In the Virginia Tech situation, the killer, although looked at by mental health authorities, had never had an inpatient commitment subject to the information system maintained by NICS, but had the killer had an inpatient commitment, the NICS system would have prevented the sale of the two guns through the retail market system. I understand the gun dealer who sold the guns used in the Virginia Tech has great sorrow that he sold the gun(s), but the gun dealer bears no fault. He committed no wrong. He properly used the system that the Commonwealth of Virginia adopted to prevent the sale of guns to mentally unstable persons. The system possibly broke down elsewhere. Yet, we should try to provide as much information as possible to our gun dealers and law enforcement.

Please let there be a hearing and consideration of the merits of SB 1755.
Sincerely,


Guy Herman, Judge Presiding
Travis County Probate Court No. 1

Thanks, BellaGirl.
Thanks for reading the crap i typed.