Ten states change their laws to require that mental health records be sent to NICS

Only 17 states have submitted more than 1,000 mental health records to database, and more than 1.5 million records are estimated to be missing

New state laws enacted to improve submission of records to National Instant Background Check System (NICS) in the wake of the Virginia Tech massacre appear to be working

The following is being issued by Mayors Against Illegal Guns:

In December 2005, Seung-Hui Cho was found to present "an imminent danger to himself as a result of mental illness" by a special judge.  This should have barred him from owning a gun under federal law, 18 U.S.C. section 922(g), but, because his mental health records were never sent to the FBI's National Instant Criminal Background Check System ("NICS"), in March 2007 Cho was able to purchase the guns he used the following month to shoot and kill 32 people at Virginia Tech.  Similarly, the Tucson shooter, Jared Loughner, should have been barred from purchasing his shotgun less than a year after he was rejected from enlisting in the army due to drug abuse, but his record was not forwarded to NICS.  

The tragedy at Virginia Tech brought attention to the failure of our national gun background check database to identify people with mental health issues that should prohibit them from purchasing guns.  At the time of the shooting, there were only around 300,000 records in the NICS Index "Mental Defective" file, even though the United States General Accounting Office estimates that the file should contain around 2.7 million records.  

There are several reasons that states were not sending mental health records to NICS.  Some states had not provided their agencies with the authority to share mental health records with the federal government.  In other states, state privacy laws barred the sharing of such records.  In still others, the right laws were in place but state agencies lacked the resources or initiative to share the records.

In the wake of the Virginia Tech shootings, ten states changed their laws to require that mental health records be sent to NICS: Idaho, Illinois, Indiana, Minnesota, Nevada, New York, Tennessee, Texas, Washington, and Wisconsin. Two others – Maine and Virginia – passed Executive Orders to require the sharing of these records.

For the most part, these laws have been successful in helping states overcome the legal barriers to sharing mental health records.  Several of these states – most notably New York, Texas, Virginia, and Washington – made dramatic improvements in the number of records shared.  For example, New York increased its records shared from 1 to 154,962, and Texas from 0 to 60,680.  

There are a variety of reasons why other states may not have seen dramatic improvements.  In Idaho, Minnesota, and Nevada, it's too early to tell whether these laws will improve record submission, since the laws went into effect only a few months before the most recent available data about NICS submission (August 2010).  In Illinois, the implementing statute required the state to reach an agreement with the FBI on how to share the data, but did not itself outline a procedure for data to be shared.  Illinois is also in the process of upgrading its computer system for submitting records.  And in Maine, the change was implemented by an Executive Order establishing a task force to explore ways to more consistently send records, so final procedures may not have been established.

New Jersey also amended its laws to allow for disclosure of mental health records, but instead of requiring any specific agency to submit records to NICS, New Jersey's law merely allowed them to do so if "disclosure is needed to comply with the data reporting provisions of the NICS Improvement Amendments Act of 2007, and the Brady Handgun Violence Prevention Act of 1993."  The law did not establish any procedures for the sharing of records and, as of August 2010, New Jersey had only submitted 8 records.

Some states had no substantial legal barriers to the submission of mental health records to NICS, but appeared to lack the administrative resources or initiative to submit records.  Several of these states, including California, Florida, Ohio, Michigan, Missouri, and North Carolina, have been able to make significant gains since Virginia Tech without legal action and have each submitted more than 10,000 records.  California alone has increased the number of mental health records submitted from 21 to 256,106 without any legislative enactment.  

As of December 31, 2010, there were 1,107,758 mental health records in the NICS Index Mental Defective file, which means that there are around 1.6 million records still missing.  Ten states still have submitted zero records to the Mental Defective file: Alaska, Delaware, Hawaii, Idaho, Massachusetts, Minnesota, New Mexico, North Dakota, Pennsylvania and Rhode Island.

Eighteen more states and the District of Columbia still have fewer than 100 people listed as mentally ill in the Mental Defective file: Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, Oklahoma, Oregon, South Carolina, South Dakota, Utah, Vermont, and Wyoming.