49. Static

June 13, 2007

Hall of the House of Representatives — Washington, D.C.

The widowed nurse from New York came back to the podium. “Individuals who shouldn’t have access to guns are getting them with ease and are killing innocent people,” she said. “The NICS system is supposed to prevent this from happening, but a database is only as good as the information put in it.”

Virginia Tech had been on everyone’s mind for months, but hers especially; back in 1993, the man who had attacked the commuter train with her family aboard turned out to have left a trail of warning signs for years, but he had still been able to obtain a handgun. Such tragedies were exactly the sort of thing she came to Congress to stop. And indeed, the nation’s system of background checks had been completely overhauled since those days, with the passing of the Brady Bill and the establishment of NICS — but now tragedy had struck again, at Norris Hall. Worse than ever. As President Bush said of the shooter in his weekly radio address, just after the VT attack, “This was a deeply troubled young man — and there were many warning signs. Our society continues to wrestle with the question of how to handle individuals whose mental health problems can make them a danger to themselves and to others.” Still, he believed the country could find a solution, because, “Together, Americans have overcome many evils and found strength through many storms.”

* * *

It turned out that the campus police at Virginia Tech had been well aware of the disturbed young man who lived in Harper Hall, for a long time. In November 2005, wholly a year-and-a-half before the tragedy, he was writing to a girl online, as “Question Mark.” After a few messages back and forth, the female student heard a knock at her door: there she was met by a young Asian man — who had somehow got into the secure building — with big mirror sunglasses on, and his hat pulled down over his brow. “I’m question mark,” he said.

She shut the door, and called the cops. She was, as the police report would later say, “freaked out.”

The police came and talked to the shooter at his suite in Harper Hall. The officers told him to knock it off: leave the girl alone.

Three days later, the shooter called Cook Counseling Center, just a few buildings away on the south end of campus. He voluntarily made an appointment to speak with a clinical psychologist — but then, when the day came, he no-showed.

One month later, he was at it again, online: another girl, in another residence hall on campus, raising another alarm about the “Question Mark” person who was sending her creepy messages. She had briefly been acquainted with the shooter personally, after his dorm mates brought him to a party the year before; he was quiet all night, and then at one point, took out a moderately sized knife, and — for no apparent reason — started stabbing the carpet.

Remembering this, she had guessed “Question Mark’s” identity, and called him out by name. But he would only respond, “I do not know who I am.”

The police came and had another talk with the shooter. This time, shortly after the cops left, his roommates came home, and they got an IM from him in the other room: “I might as well kill myself now.”

The cops got another call, turned around, and took the shooter for an emergency mental evaluation; the roommates breathed a sigh of relief. Now law enforcement was involved.

The shooter was evaluated by a representative from the local Community Services Board, who determined that he was “an imminent danger to self or others.” A temporary detaining order was issued, and the shooter was transported to Carilion St. Albans Psychiatric Hospital for an overnight stay, with a full mental evaluation the following day. But this session would go much differently: the staff psychologist concluded that the young man “does not present an imminent danger.” Another doctor agreed, asserting that “there is no indication of psychosis, delusions, suicidal or homicidal ideation.” Both recommended outpatient counseling, and they scheduled the shooter for a follow-up appointment. Then he was discharged, back into the community.

* * *

There was only a year to go before his attack then, and he would spend it turning in disturbing writings in school, bullying his teachers, recording his martyr video, and — just two months before the shooting — buying his first gun. He bought it online, from a website TheGunSource.com, and picked it up at the closest FFL dealer — the pawn shop across the street from the Virginia Tech campus. He bought the other pistol directly from a gun store, one town over.

He was, exactly, the sort of guy who was never supposed to get his hands on a gun, let alone two.

President Bush ordered his Department of Health and Human Services, Department of Education, and Department of Justice to start a joint investigation: find out exactly where the background check system had broken down, and what it would take to fix it.

The joint investigation finished its work that June. Many of their findings were taken directly from the Virginia Tech case, but they applied nearly everywhere in America: “The state’s mental health laws are flawed and services for mental health users are inadequate. Lack of sufficient resources results in gaps in the mental health system including short term crisis stabilization and comprehensive outpatient services.”

They found that the reasons for St. Albans letting the shooter go were mostly structural: the involuntary commitment process was “challenged by unrealistic time constraints, lack of critical psychiatric data and collateral information, and barriers (perceived or real) to open communications among key professionals.”

The whole system suffered from “silo-ing” of information. Nobody along the way had really examined “the shooter,” the way the post-attack investigators could; the information was all scattered around, walled off in sections. No one person knew all of it, or even half of it. Only fragments. The doctors at St. Albans were totally unaware, for example, of their patient’s documented obsession with the Columbine attack, because that fact only appeared in the high school educational records. Similarly, when the staff at Virginia Tech grew concerned about his writings a year later, they would know nothing about the commitment proceeding, or any of his mental health history; those were private medical records. Even some of the records they could share, they didn’t, being unsure of the rules. And the K-12 IEP records were in yet another silo; Virginia Tech had no idea that their English-major applicant was practically a mute, until his first day of class. He was a blank slate.

The second missed opportunity happened in early 2007, when the shooter was buying his two pistols. In both instances, when he got to “Question 11F” of the standard Firearms Transaction Record form — which asks the gun buyer if they had ever been “adjudicated mentally defective,” noting that this would include “determination by a court, board, commission, or other lawful authority that you are a danger to yourself or others” as well as “committed to a mental institution” — the shooter simply checked “no.” He lied, violating federal law, but there was no way to know that. The NICS background check would have shown if he had ever been committed to an institution, but the way the law was interpreted, this did not include being committed to outpatient facilities, in the community, like the shooter had been to. Virginia immediately set about tightening the law to include outpatient commitment, but many other states would continue on, with the same ambiguity in their rules.

As for the rest of the NICS standards, the shooter didn’t have a criminal record, or any warrants. So he passed the Brady Bill’s test, twice. When CBS News interviewed The Gun Source’s president, he could only plead ignorance. NICS had told his company to go through with the sale. “I don’t know how you can ever stop a crazy person from doing crazy things.”

The VT shooter only had one more legal hurdle to clear: Virginia’s “one gun a month” law. He would have to wait 30 days after the first handgun purchase before he could buy another one. So, that’s just what he did; he waited out the waiting period. The law was passed in 1993, and was meant to stifle interstate gun smuggling. Not shootings.

* * *

The nurse from New York saw her opportunity. She already had a bill designed to fix the NICS system; she had been trying to get it passed ever since a gunman attacked a church in her district back in 2002. At the time, she had called it the Our Lady of Peace Bill. Now, it became the 2007 NICS Improvement Act.

She had figured out a major reason why background checks kept failing: money. Some state records — and more at the county level — were still not online, and when they were, they often were not formatted to give the level of detail the FBI needed to make the call on a gun sale. “Many states don’t have the resources to keep the NICS database up to date,” she explained. So, her bill provided $200 million for state and local governments to modernize their record-keeping, funds that could be re-approved annually. In return, those state and local governments would notify NICS of anyone in their jurisdiction who had been involuntarily committed. Simple.

The bill was met with broad support. Even the NRA was listening. They only had two problems: first, they noted that among the agencies whose records would be incorporated into the now-expanded background checks would be the Department of Veterans Affairs. They didn’t want veterans who had received mental health treatment to be discriminated against, or to have their privacy invaded. So, the representative from New York clarified the language, so that “the VA will only provide records on veterans determined by the same procedures that apply to non-veterans in regards to mental health.” Records of conditions that “do not reach the legal threshold of mental illness” would not be sent to NICS. And if NICS didn’t need the data they did receive, the FBI would erase it.

Second, the NRA camp wanted there to be a way for people who were prohibited from buying guns — the ones who would fail the background checks — to have their gun-purchase rights restored. So, the representative changed the bill again, making it so that states could only qualify for the funds if they established a “Program for Relief from Disabilities,” where the gun buyer could essentially inform NICS that their disqualifying condition was ruled incorrect, or no longer applied. If it could be confirmed they weren’t considered dangerous anymore, then they could buy guns again. And if their application for relief was not processed within 365 days, it would automatically be passed.

President Bush signed the NICS Improvement Act shortly after the new year. It was the first significant gun restriction to be passed since the Assault Weapons ban in 1994, a law that was now only a memory. They had given up looking for the next gun; now, they would look for the next shooter.

The limitations of the NICS improvements became apparent early on. Few states were able or willing to establish their gun-rights restoration process (especially after a few high-profile cases where a successful appeal led to another shooting). But of the 14 states who fully participated in the new system, Connecticut was one — now, if someone in the state who had been committed to a mental institution ever tried to obtain a gun, their radar would pick it up.