South Florida

Florida law is supposed to keep guns from the violent and mentally ill. It’s not working.

Protesters gathered Feb. 17 on the steps of the federal courthouse in Broward County to call for stronger gun control after student Nikolas Cruz opened fire with an AR-15 rifle at Marjory Stoneman Douglas High School in Parkland.
Protesters gathered Feb. 17 on the steps of the federal courthouse in Broward County to call for stronger gun control after student Nikolas Cruz opened fire with an AR-15 rifle at Marjory Stoneman Douglas High School in Parkland. Getty Images

In the days after a teenaged gunman opened fire at Marjory Stoneman Douglas High School on Feb. 14, Gov. Rick Scott and many of the state’s Republican lawmakers initially sidestepped the subject of gun control and instead focused on mental health, vowing to look at laws that keep guns away from violent people with mental illness.

That same message — that mental health is the problem, not guns — was repeated by the National Rifle Association at a packed CNN town hall last week.

“Do you know it is not federally required for states to actually report people who are prohibited possessors, crazy people, people who are murderers?” NRA spokeswoman Dana Loesch said to jeers from a crowd of about 7,000 at the BB&T Center. “How was he able to pass a background check? He was able to pass a background check because we have a system that’s flawed.”

Actually, Florida has laws tailored to catch people exactly like Cruz. But they don’t work, experts say, for a host of reasons. They’ve been sporadically enforced or even ignored. The state’s mental health system, which would assess, treat and flag potential problems, is woefully underfunded. And guns can be obtained online, at gun shows and in myriad ways that avoid background checks.

This is how rare it is to raise a red flag under current mental health checks: Of the nearly one million background checks submitted by Florida gun dealers last year, fewer than 900 potential buyers were rejected for mental health reasons. Despite repeated warnings to schools and police that he was a violent threat, 19-year-old Nikolas Cruz was able to legally purchase an AR-15, one of seven guns he owned.

Under Florida statutes, licensed gun dealers can’t sell a firearm until a customer passes a background check. People who have been involuntarily committed for treatment for mental health, substance abuse or deemed incapacitated by a court are supposed to get reported to Florida law enforcement officials to be flagged during checks. But in 2013, after recognizing the law failed to catch about 99 percent of those in crisis because they opted for voluntary committal, the law was strengthened significantly, said Miami-Dade County Judge Steve Leifman, who chairs the Florida Supreme Court task force on mental health.

Now, both involuntary and voluntary committals should be reported, which should dramatically widen the number of potential gun buyers that would be flagged.

But five years later, there’s a major hole in the fix: Only one of the state’s 67 counties, Hillsborough, appears to be complying with the revised law.

“I wish I had a good reason,” said Leifman, who could not discuss specifics related to the Stoneman Douglas shooter. “My greatest fear is we would see some sort of tragedy because the paperwork didn’t get filed.”

gun protest crosses
Volunteers carried crosses to be placed in front of Marjory Stoneman Douglas High School on Feb. 18 in honor of the victims of the mass shooting there. Mark Wilson Getty Images

It’s not clear that the change could have prevented Cruz from purchasing the AR-15 rifle in February 2017 that he used on Valentine’s Day to gun down 17 fellow students and teachers and wound 15 others. Records released from law enforcement agencies and the Broward County school system so far don’t show whether he was ever committed to a mental treatment center, voluntarily or otherwise. The question is why.

On Thursday, the Broward County Sheriff’s Office said authorities had twice been warned that Cruz was in danger of becoming a “school shooter” beginning two years ago. One report was passed along to the deputy assigned to the campus, who resigned last week.

Cruz was repeatedly disciplined at school for disruptive behavior, and changed schools six times in three years, including a stint at an alternative school for kids with emotional and behavioral issues.

In September 2016, a mental health clinic’s mobile crisis unit was sent to Stoneman Douglas after Cruz admitted cutting himself and being depressed, according to Florida Department of Children and Families records. A counselor from Henderson Behavioral Health talked to Cruz but determined he was stable and didn’t need to be committed. School officials weren’t so sure.

Days later DCF opened an investigation. A school counselor told the investigator Cruz had talked about getting a gun and wondered if Henderson’s decision was premature. The investigator questioned the Henderson counselor, but the counselor assured the investigator that Cruz’s mother was attentive and Cruz was not at risk.

Then Cruz’s mother died. In November 2017, the Broward Sheriff’s Office received two calls about the teen’s growing collection of guns. Palm Beach County deputies were also called to the home where he was staying with a friend of his mother’s. He’d gotten in a fight with the family. But when deputies arrived, the family declined to press charges. It’s not clear whether he was still getting mental health treatment.

His case, gun-control advocates say, shows why background checks alone fail at gun control.

“The system is only as good as the data in it,” said Avery Gardiner, co-president of the Brady Campaign to Prevent Gun Violence. “If mental health institutions aren’t reporting it, then the background check won’t catch them. And then the person has to buy a gun from someone who does a background check. So you can see the Swiss cheese problem in this story.”

There has been some recent progress. Florida improved its efforts at reporting mental health records to the FBI’s National Instant Criminal Background Check System (NICS) after receiving $5 million in federal funding in 2010 and 2011, increasing the number of mental health records in the database from 40,775 to more than 140,000 individuals, according to a study by Mayors Against Illegal Guns.

But that number still falls well short of other states of the same size. New York had 544,398 mental health records on file as of December, NICS records show. Florida had just 151,859.

In a 2016 report to Congress, the FBI said many states remained confused over how to report mental health records.

gun protester
Josh Levine, 17, a student from Marjory Stoneman Douglas High School, stands at the corner of Westview Drive and University Drive, protesting for tighter gun control on Feb. 16. AL DIAZ

Cruz may also have slipped through the cracks because the state’s mental health system is so overburdened.

Florida ranked 50th in the nation for spending on mental health in 2013, the last year numbers were reported, according to the South Florida Behavioral Health Network. But gun ownership lands at the other end of the spectrum, with 343,288 registered firearms in the state in 2017, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives. That puts Florida behind second-ranked California, a state with twice the population. Texas is in first place.

Health Network President John Dow blamed Florida’s dismal mental health spending on the state’s refusal to accept Medicaid expansion. New York, which participates in Obamacare and also has about 20 million residents, spent nearly eight times as much on mental health.

“We’re treating 28 percent of those in need of services and that’s even skewed because it doesn’t cover undocumented people,” said Dow, whose agency covers Miami-Dade and Monroe counties. “I’m disgusted by how we respond to this as a society. ... It’s become normal. People become immune and say, ‘OK, some day it’s going to happen in my school.’ 

gun protest cross
Mourners gathered at one of 17 crosses erected outside Marjory Stoneman Douglas High School for the 17 students and faculty gunned down on Feb. 14. Gerald Herbert AP

After it became clear that counties, including Miami-Dade and Broward, were not using the expanded law to include voluntary committals in background checks, Dow said his group studied the issue and quizzed medical staff. The agency treated 61,000 patients last year in Miami-Dade and Monroe counties with roughly 40,000 in need of mental health services. Of those, 6,500 were admitted under the Baker Act for crisis stabilization, he said. That means, statewide, there should be far more records in the database. So far this year, the agency has committed 3,396 patients.

Dow believes the lapse in reporting voluntary committals likely occurs at hospitals and mental health centers where medical staff fill out paperwork submitted to the county Clerk of Court’s office. The law is complex, includes confusing exceptions and paperwork that requires a signed affidavit acknowledging that the patient may lose their gun rights. If the paperwork is filled out incorrectly, the clerk’s office will send it back, Dow said. By then, patients who typically stay less than five days are long gone, he said.

Gov. Scott and Florida lawmakers also left doctors wary about bringing up guns after passing a law in 2011 that restricted what they could ask. The law was challenged, but only overturned last year.

“There’s no checks and balances in the system,” Dow said. “You don’t know who’s filling out the paperwork, the doctor or the nurse. You can train a nurse and a week later the nurse is gone. There’s very little follow-up.”

Laws can also take time to get traction. After a Connecticut lottery worker killed four supervisors in 1999, Connecticut became the first state in the nation to grant police the power to temporarily take away a gun. The civil procedure did not create a criminal or mental record and was intended to balance the rights of gun owners without stigmatizing the mentally ill.

But for the first eight years it was on the books it was rarely used, according to a 2017 study led by Duke University psychiatrist Jeffrey Swanson. Only 20 seizures occurred each year. After the Virginia Tech shootings in 2007, the number rose to about 100 a year.

Although the numbers were small, they revealed an encouraging side effect. Most gun owners were known to mental health officials when their guns were seized. But only 12 percent had received treatment the year before. After the guns were removed, the number who decided to seek treatment more than doubled.

“The gun removal intervention sometimes functioned as a signal event and a portal into needed treatment,” the study said. Of the guns removed, only 10 percent were returned. Gun owners also had their permits revoked.

dc gun protest
Students take part in a “lie-in” on the road outside the White House on Monday in Washington, D.C., for three minutes at a time in an effort to symbolize the short amount of time it took Nikolas Cruz to gun down students and teachers at Marjory Stoneman Douglas High School in Parkland. Olivier Douliery TNS

The law was the first in what has become a suite of ‘red flag’ laws fueled by the increase in mass shootings. Five states now have such laws. They allow not only law enforcement, but also family members or roommates to report potential threats and remove guns. Other states have also worked to improve reporting for background checks.

But even with adequate checks and improved mental health treatment, gun control advocates say gun sales, and the abundance of high-powered guns, cannot be ignored. In 2017 alone, according to the ATF, the U.S. manufactured 9.4 million firearms and imported 5.1 million more guns.

Only licensed dealers have to comply with background checks. Sales at pawnshops and gun shows, through private hands and online require no checks at all. Without universal background checks for all gun sales, Ari Freilich, a staff attorney with the Giffords Law Center to Prevent Gun Violence, said America operates like an airport with one tough, and one easy, security line.

“If you’re buying from a gun dealer and there’s a background check, that security line is as secure as it can be,” he said. “But without checks, people can go through the other security line and waltz right through the airport.”

The lack of reporting could be why Florida rarely rejects a gun sale for a mental health record.

Of the 990,314 checks submitted by state gun dealers in 2017, only 871 denials were issued statewide for mental health records, said FDLE spokeswoman Gretl Plessinger. Because FDLE officials can only list one reason for denial, she said, it’s possible a check turned up multiple reasons, including crimes and mental health. But records would only show one cause. In total, the state failed 12,472 checks, she said. In other words, 977,842 sales were approved.

In the days since the shooting, Leifman said he has been contacted by Scott and lawmakers to again help revise the mental health laws. He’s fearful, however, that lawmakers will look for short-term fixes, like widening background checks, without addressing core mental health and gun control.

“There’s so many pieces to making sure that people who have an illness get appropriate care, and in some ways the Baker Act may be the least of it,” he said. “If you don’t close the gun loophole, don’t have the capacity in the community [mental health centers], if you don’t have the long-term care afterwards, it’s not going to matter.”

Follow Jenny Staletovich on Twitter @jenstaletovich

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