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Mental Status Reporting Reviewed

April 27, 2007

By Bill McKelway

Virginia is the leading state in providing law-enforcement authorities with information regarding mental patients, but reporting requirements and procedures vary widely across the state and conflict with federal laws.

Gov. Timothy M. Kaine said yesterday that he and the state attorney general's office are moving quickly to close loopholes that allow dangerously mentally ill people in Virginia to purchase weapons.

Those loopholes allowed Virginia Tech gunman Seung-Hui Cho unimpeded access to weapons purchases as long as he lied on federal forms about his mental condition.

"There's a gap we may be able to close," Kaine said. The conflict is being addressed outside the work of a special commission Kaine appointed to look into the Virginia Tech shooting rampage.

The head of that panel, retired Virginia State Police superintendent W. Gerald Massengill, has said Virginia law conflicts with federal regulations and that Cho should not have been able to purchase a weapon.

That view was supported yesterday by the National Rifle Association.

"You should be prohibited from buying a firearm," NRA spokeswoman Julie Panna said about people designated as dangerously mentally ill. She noted that barring gun purchases by mentally ill people has had NRA support for more than three decades.

Virginia law requires that a mentally ill person be committed to a medical facility before his mental condition can be made known to law enforcement for background checks. But federal guidelines can block the purchase of a weapon by anyone who is "mentally defective."

State police said yesterday that nearly half of the reports submitted nationally to the Federal Bureau of Investigation dealing with mentally ill people have been submitted by Virginia. Of the 165,778 people reported nationally, 80,495 were submitted by Virginia.

Twenty-eight states do not submit information to criminal databases about mental condition, according to the FBI.

Kaine lauded the state record yesterday but said there are still problems.

Kaine said that Cho "lied on the federal form" where a firearms purchaser is asked whether he has been judged mentally defective. But because his mental assessment did not meet reporting requirements of Virginia law, there was no way to catch Cho's false statement in law-enforcement data banks.

The computerized data banks contain mental-health data, but only that provided by state sources.

A remedy could involve requiring clerk's offices across Virginia to report any judicial finding of mental illness. But that move raises questions about the constitutionality of curtailing civil liberties in voluntary commitment proceedings.

Nor is it clear in Virginia law what a mentally ill person's status would be relative to a gun purchase after a period of treatment or confinement ends.

Kaine made his comments yesterday on WRVA radio in Richmond, devoting almost a full hour to the Virginia Tech shootings.

Cho, 23, murdered 32 students and teachers before taking his own life April 16. He was able to purchase at least two weapons this year despite findings by a special justice in Christiansburg in December 2005 that he was mentally ill and a danger to himself.

"The determination [of Cho's mental condition] was made based on the circumstances when this happened in 2005 that outpatient care was appropriate. We're going to look at the standards for that, the standards for inpatient versus outpatient," Kaine said.

Kaine suggested that the justice was obligated by a 1999 Supreme Court decision to provide the least-restrictive method of appropriate care.

Paul Barnette, the special justice in Christiansburg who ruled in Cho's case, declined to comment yesterday.

Cho was released for outpatient treatment after an overnight stay at Carilion Saint Albans Behavioral Health Center in Montgomery County, according to Barnette's Dec. 14, 2005, court order.

But the order does not say who was to provide the treatment or what the treatment was to consist of.

"To follow all recommended treatments," the order states, with no other detail.

State law requires a discharge plan that is usually overseen by the local Community Services Board, but a spokesman for the New River Valley Community Services Board said yesterday that it was not involved in Cho's post-release care.

Virginia Tech, citing confidentiality laws, has declined to say if its student counseling service provided treatment after Cho's release. The Virginia Tech police department has said that it had no contact with Cho after his December 2005 assessment until the shootings last week.

Montgomery County General District Court Clerk Stephanie Marion said no report of Cho's mental assessment was forwarded to state police in December 2005 because there was never a finding that Cho was incapacitated or had been committed to a mental facility.

Contact Bill McKelway at bmckelway@timesdispatch.com or (804) 649-6601.