WASHINGTON -- Under federal law, Seung-Hui Cho, the Virginia Tech gunman, should have been prohibited from buying a gun after a Virginia court declared him to be a danger to himself in late 2005 and sent him for psychiatric treatment, a state official and several legal specialists said yesterday.
Federal law prohibits anyone who has been "adjudicated as a mental defective," as well as those who have been involuntarily committed to a mental health facility, from purchasing a gun.
A special justice's order in late 2005 that directed Cho to seek outpatient treatment and declared him to be mentally ill and an imminent danger to himself fits the federal criteria and should have immediately disqualified him, said Richard J. Bonnie, chairman of the Virginia Supreme Court's Commission on Mental Health Law Reform.
A spokesman for the US Bureau of Alcohol, Tobacco, Firearms, and Explosives also said that if found mentally defective by a court, Cho should have been denied a gun.
The federal law defines adjudication as a mental defective to include "determination by a court, board, commission or other lawful authority" that as a result of mental illness, the person is a "danger to himself or others."
Cho's ability to buy two guns despite his history has cast new attention on the adequacy of background checks. And since federal gun laws depend on states for enforcement, the failure of Virginia to flag Cho highlights the often-incomplete information provided by states to federal authorities.
Currently, only 22 states submit any mental health records to the federal National Instant Criminal Background Check System, the FBI said in a statement yesterday. Virginia is the leading state in reporting disqualifications based on mental health criteria for the NICS system, the statement said.
But Virginia state law on mental health disqualifications to firearms purchases has slightly different wording than the federal statute.
The form that Virginia courts use to notify state police about a mental health disqualification only addresses the state criteria, which lists two potential categories -- someone who was "involuntarily committed" or ruled mentally "incapacitated."
"It's clear we have an imperfect connection between state law and the application of the federal prohibition," Bonnie said. The commission he leads was formed by the state last year to examine the state's mental health laws.
Bonnie, director of the University of Virginia Institute on Law, Psychiatry and Public Policy, said his panel would look into the matter: "We are going to fix this."
Bonnie said he believed that similar problems exist elsewhere in the country: "I'm sure that the misfit exists in states across the country and the underreporting exists."
After two female students complained about his behavior in 2005, Cho was sent to a psychiatric unit for evaluation and ordered to undergo outpatient treatment, which would not qualify as an involuntary commitment under Virginia law, Bonnie said.
"What they did was use the terms that fit Virginia law," he said. "They weren't thinking about the federal. I suspect nobody even knew about these federal regulations."
Christopher Slobogin, a law professor at the University of Florida and specialist on mental health, said that he thinks that outpatient treatment could qualify as involuntary commitment under Virginia law, meaning that Virginia should have barred him from buying a weapon, an interpretation Bonnie said he and the state's attorney general disagree with.