AG Dann: Handful of CHL applicants slip through mental health background checks
By Chad D. Baus
Ohio Attorney General Marc Dann (D) announced today that at least some Ohioans applying for concealed handgun licenses (CHLs) since 2004 have not been properly screened to determine if they have been found mentally incompetent by a judge, or involuntarily committed to a mental institution. Such screens are required by state law.
Mr. Dann, who initiated a check of the state’s database in the wake of the Virginia Tech massacre, said he learned late last week that the database containing the names of mentally incompetent individuals was not being reviewed during the background check process. He immediately directed the staff of the Bureau of Criminal Identification and Investigation to conduct the required screening.
That review revealed that two people in Lucas County (out of the nearly 87,000 Ohio CHLs that have been issued across the state) had been issued licenses when they should not have been - one a Temporary Emergency License (TEL), and one a standard Concealed Handgun License. Neither license was active at the time of Dann's discovery, and Dann, who supports Ohio's concealed carry law, said neither had committed gun crimes or were considered a danger to others.
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In the TEL case, the license expired after 90 days and the individual did not return to apply for a standard license. In the standard CHL case, Sheriff James Telb (D) knew the person who had been issued the license and requested that they return it, and the individual did. Dann's office reminded Sheriff Telb that these two individuals may have committed a felony by falsifying their license applications.
Two other individuals, one in Lorain and one in Summit counties, were issued licenses before being adjudicated as mentally incompetent, and should have had their licenses revoked after the court ruling. Dann's office has contacted Lorain County Sheriff Phil Stammitti (D) and Summit County Sheriff Drew Alexander (R) and requested the licenses be revoked.
Dann also noted that his office will begin forwarding information on persons adjudicated as mentally incompetent to the FBI for entry into the database it uses for background checks on gun purchases.
While Mr. Dann said he will investigate to see "who dropped the ball", his press release seems intent on directing fault at the "previous administration".
While all details are not yet known, it is important to point out that Ohio's 88 county sheriffs are responsible under the law for conducting the background check of applicants. Ohio's concealed carry law disqualifies applicants who, among other things, been found by a court to be mentally incompetent, or who have been involuntarily committed to a mental institution.
At the time Ohio's concealed carry law was established, opponents of the law attempted to claim that a Federal privacy law governing medical records (HIPAA) made it impossible to complete the background checks prescribed in House Bill 12 for CHL applicants. The Ohio Attorney General's office and the Ohio Hospital Associated disagreed, and designed HIPAA-compliant rules for the data to be collected.
To ensure that applicants have not been found by a court to be mentally incompetent, Ohio Sheriffs are instructed to review probate court records. O.R.C. 5122.311 says mental records shall be checked with "probate courts or chief clinical officers" at hospitals. In fact, one of the reasons for which applicants are required to list every address they have lived at since age 18 is so that sheriffs can check probate court records in every county in which the applicant lived.
Additionally, as Mr. Dann noted in his press conference, a database containing the information needed to do this particular check was established with passage of the concealed carry law in 2004. It has been regularly updated since, and now contains 12,000 names.
It is not yet clear what records the sheriffs in Lorain, Lucas and Summit counties were consulting to establish mental compentency, but Lucas Co. Sheriff Telb has told WTOL.com (CBS Toledo) that his deputies check for mental illness with every application, and that it's up to the courts and state to inform them if mental illness occurs after the license is granted. Telb maintains the two mental illness cases were never relayed.
"When the state says, 'No record,' we take that as gospel," Telb told WTOL.
Mental Health Background Check Discussions in the Wake of Virginia Tech Massacre
Obviously no one wants mental incompetents to have guns. Certainly any measure to prohibit this would appear to be something most people could support, especially in the emotional wake of the Virginia Tech massacre. However, when it comes to proposing new legislation, the devil will always be in the details.
Currently, the law does not apply to someone who voluntarily seeks mental health treatment unless there is a court order associated with it. But In the past, gun ban extremists have attempted to claim that persons who have voluntarily committed themselves to mental health care facilities should be forever prohibited from purchasing a firearm or bearing arms for self-defense. Making this a disqualifier would have the unintended consequence of disqualifying anyone who has ever sought help at a stress center or an eating disorder clinic.
Simply because she voluntarily sought help in a mental care facility while recovering from a violent rape, gun ban extremists apparently believe a victim should be prevented from ever being able to protect herself from future attack.
Simply because, as a college student, she needed help from a mental care facility to recover from an eating disorder, gun ban extremists apparently believe a woman should be prevented from ever being able to obtain a CHL.
Simply because he was nearly killed by a drugged-up felon while trying to make an arrest, and sought professional help in a recovery facility before going back on the job, gun ban extremists seem to suggest a former police officer deserves to be treated like the criminal he once took off the street.
As Buckeye Firearms Association Legislative Chair Ken Hanson recently wrote, "I already see in my professional life people that refuse to seek treatment because it will effect their job, their custody battle, their family, etc. Mental health professionals are adamant that seeking treatment should be encouraged and confidential. Anything that imposes a penalty upon someone for voluntarily acknowledging a problem and seeking treatment is counter-productive. If we preemptively suspended driver's licenses and required ignition interlocks for people who attended AA...well, you get the idea."
Press coverage:
- Petro said Friday that his office ran fingerprint checks to review the mental backgrounds of applicants, but, in many cases, it was impossible to find a positive match because fingerprints are not used to identify those who are hospitalized as they are in criminal matters. He said applicants may also have given authorities invalid or incorrect addresses or Social Security numbers.
"I was aware of what we thought was a weakness in the statute but tried to work around it," said Petro, now in private practice after an unsuccessful run last year for the GOP nomination for governor.
Petro said he spoke with Dann on Monday about the problem.
"Those were incidents that dropped through the cracks," Petro said.
- Dann said the state employee responsible for the mistake no longer works for the Attorney General’s office, He apparently failed to check probate court records after concluding the mental health data was unreliable.
...Dann said the vast majority of gun permit applicants are law-abiding citizens.
- Dann unintentionally gave credence to a Petro argument, that there were and still are questions over whether details provided by probate courts for the list are sufficient.
Petro said the information typically came in with just a name and address, which could be fictitious and hard to match up. He suggested the law be changed to require fingerprints as an identifier of those on the list.
Trumbull County Probate Judge Thomas Swift, president of the Ohio Association of Probate Judges, said he sent an email on Dann's behalf this week to probate judges, urging them to try to submit more complete data, including social security numbers and dates of birth.
Both the Buckeye Firearms Association, a gun-rights supporter, and the Ohio Coalition Against Gun Violence commended Dann for addressing the issue.
- When it comes to getting a permit to carry a concealed weapon, Ohio had not been checking a database of 12,000 people who have been adjudicated as mentally incompetent, Attorney General Marc Dann said.
Former AG Jim Petro disagrees, saying the database was built specifically so thorough background checks could be done on applicants for concealed-carry permits. The database did not include fingerprints, used as identifiers in criminal checks, so it wasn't considered entirely reliable, Petro said.
- Mr. Dann’s Republican predecessor, Jim Petro, said he believes such checks were done, but the results were spotty and often inconclusive because state officials did not have fingerprints or Social Security numbers to work from. The database contained names and addresses.
“My instruction was that we have to do the best we can with the information we have,” said Mr. Petro, now in private legal practice in Columbus.
“I operated under the presumption that that’s what we did, but it was weak,” he said. “Somehow we should have nondisclosable retention of Social Security numbers and also take fingerprints to use as identifiers. That would greatly improve mental health records.”
...Jim Irvine, chairman of the Buckeye Firearms Association, said it appeared Mr. Dann had taken appropriate steps to address the issue.
"It’s very difficult to weed out the few people who are a problem and not catch very good people who are not a problem," he said. "We’re not good at the mental illness game. There are so many fuzzy borders, so many diseases, but treated, people live normal lives."
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