Georgia clears way for mentally ill to buy guns

Georgia is the only state that automatically removes records of involuntary commitments for inpatient treatment from the FBI’s National Instant Criminal Background Check System.
Georgia is the only state that automatically removes records of involuntary commitments for inpatient treatment from the FBI’s National Instant Criminal Background Check System. TNS

The records of thousands of people who were involuntarily committed for mental health treatment in Georgia have been removed from the national database that gun dealers use to run background checks of buyers.

Such people are not permitted under federal and state law to buy firearms. And this year, the state uploaded more than 2,000 new records of mentally ill Georgians to the database – people committed for inpatient treatment; found incompetent to handle their own affairs; or found guilty of a crime but mentally ill.

But the state also took down almost 500 other records in 2015, making it possible for scores of mentally ill people to acquire guns legally anywhere in the country.


Because in Georgia, it’s the law: Once a record of a commitment in Georgia has been on the National Instant Background Check System for five years, state law requires that it be removed. So even as the state is adding hundreds of commitment records each year, it is also deleting hundreds more as they hit the five-year limit.

It is as if they were never prohibited from having guns.

“We’re pulling them back after five years,” said GBI Director Vernon Keenan, whose agency provides the commitment records to the FBI’s National Instant Criminal Background Check System. “That’s a legal dilemma (because) that person is still prohibited from possession or buying firearms.”

The names come off the national list without any review by a doctor or a court. Although these are federal records, participation in the program by each state is voluntary and subject to conditions the state may impose.

More than a decade ago, the Legislature authorized the GBI to provide the FBI the names of mentally ill people involuntarily committed to a public or private hospital, but with the condition that records be removed after five years.

In light of recent mass shootings, the public has joined in the concern increasingly expressed by politicians, law enforcement and judges.

Athens-Clarke County Probate Court Judge Susan Tate was moved to write an opinion piece for her local newspaper in October after Christopher Harper-Mercer, 26, fatally shot eight students and an assistant professor at Umpqua Community College before killing himself.

There are gaps in the law, deadly gaps, said Tate, chair of the Weapons Carry License Committee for the Council of Probate Court Judges of Georgia.

Only mentally ill people who are involuntarily committed for inpatient treatment are reported to the FBI for the purpose of gun background checks. People who are ordered to have an evaluation but then agree to admit themselves for treatment are not reported. Neither are mentally ill people treated as outpatients, whether the treatment is voluntary or involuntary.

“I’m always scared when I’ve ordered somebody to be evaluated,” said Tate, the Georgia contact for the National Criminal Background Check System. “Even if they haven’t been hospitalized, I wouldn’t want any of those people to have a gun.”

John Houser killed himself after fatally shooting two people and wounding nine in a Louisiana movie theater in July. He legally bought his gun even though in 2008 a Carroll County, Georgia, probate judge ordered him to be evaluated. Judge Betty Cason told Channel 2 Action News she never received a petition to commit him from the doctors who evaluated him; consequently, his name never appeared on the FBI database. His mental illness was documented in other public records in Carroll County dating to the 1990s.

Georgia has about 9,000 records at this time on the national database, while many other states have tens of thousands.

Georgia is the only state that automatically removes records of involuntary commitments to inpatient treatment.

For most mental disorders and for most people, treatment is effective in a period of “weeks to months,” said Dr. Steven Hoge, chair of the American Psychiatric Association’s Council on Psychiatry and the Law, though there are people who are not completely responsive to treatment or who relapse.

In his opinion, the five-year waiting period is “reasonable.” But given the range of reasons for civil commitments, a case-by-case analysis would be a better way to determine if someone who has been committed should be allowed to buy a gun, Hoge said.

Still, limitations on gun purchases for people who have been involuntarily committed is unlikely to dramatically reduce gun violence, he said.

“The public has massively overestimated the dangerousness of the mentally disordered,” Hoge said.

State Sen. Renee Unterman, R-Buford, chairwoman of the Senate Health and Human Services Committee, said the provision to remove names after five years was put into Georgia law to spare those with mental illness the stigma even after their illnesses are controlled.

“It’s a tenuous position for someone to have had a mental illness,” said Unterman. “Your mental health when you’re 25 years old is different from when you’re 55 years old. Why should you carry the baggage and stigma of mental illness? … If you stigmatize people, it makes people afraid to come out.”

It’s voluntary for states to send to the FBI names of those ordered hospitalized for treatment of their mental illnesses, though a grant program was created in 2007 to give them the incentive to participate.

The FBI said in an email it was not authorized to identify the states that contribute to the background check system. But Lindsay Nichols, senior attorney with the Law Center to Prevent Gun Violence, said every state takes part to some degree.

North Carolina, for example, had posted 120,000 records as of June 1, according to the Law Center. Pennsylvania has reported more than 737,000 records. Yet six states have sent fewer than 55 records.

Who cannot buy a gun?

Georgia and federal laws prohibit selling a gun or issuing a permit to carry a gun to anyone:

▪  Convicted of a felony, who is a fugitive or is under indictment for a crime that carries a punishment of at least a year in prison.

▪  Convicted of a drug offense in the previous year or multiple drug offenses in the previous five years.

▪  Involuntarily committed to inpatient treatment for mental health. It does not apply to anyone who voluntarily goes into treatment.

▪  Found incompetent to stand trial, guilty but mentally ill.

▪  For whom a guardian is appointed after they are found incompetent to handle their own affairs.

▪  Illegally in this country.

▪  Dishonorably discharged from the military.

▪  Who has renounced their citizenship.

▪  Convicted of misdemeanor domestic violence.

▪  Who has a restraining order against them to prevent stalking, harassing or threatening an intimate partner and their children.