Kaine & McDonell Show Bi-Partisan Leadership

GOVERNOR KAINE ISSUES EXECUTIVE ORDER EXPANDING BACKGROUND CHECKS FOR GUN PURCHASES

Attorney General McDonnell Provides Legal Advice for Expedited Solution
~ Database to include involuntary outpatient mental health treatment ~

RICHMOND

– Governor Timothy M. Kaine today issued Executive Order Number 50 instructing all executive branch agencies to immediately begin including the names of individuals found dangerous and ordered to undergo involuntary mental health treatment in the database accessed before the sale of firearms by licensed gun dealers to ineligible individuals.   The order clarifies that there will be no distinction in reporting based on whether an individual is ordered to undergo inpatient or outpatient treatment.

“Our office was pleased to work with Governor Kaine to quickly remedy this apparent ‘disconnect’ between state and federal law,” Attorney General Bob McDonnell said. “With today’s action by the Governor, and additional solutions likely to be considered during

Virginia

’s next legislative session, Virginians can feel confident that all of us are working in a bipartisan and responsible way to promote public safety.”

Attorney General Bob McDonnell provided legal advice and research assistance to the Governor during a review of state laws affecting the purchase of firearms by those adjudicated mentally ill. The review was prompted by the April 16th tragedy on the campus of Virginia Tech.

Specifically, Governor Kaine is directing the Virginia State Police to request copies of orders both for involuntary inpatient and involuntary outpatient care from district courts. The Governor is instructing State Police to revise SP-237, the form by which they request such data, to explicitly reflect the addition of outpatient care. Finally, the Governor is directing State Police to include this information in the Central Criminal Records Exchange, the database checked prior to firearms sales, and to share the information with federal law enforcement agencies.

The Executive Order also directs the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services to revise DMH 1006, the form by which it petitions for involuntary care, to reflect that both inpatient and outpatient involuntary care are to be reported to the Central Criminal Records Exchange.

"The database used to scrutinize the histories of those purchasing guns should include any determination that someone is mentally ill and so dangerous to himself or others as to warrant involuntary treatment.  The key factor should be the danger finding, and not whether the judicially-mandated treatment is performed in an institution or on an outpatient basis,” Governor Kaine said. “The 2008 General Assembly may determine whether any of the relevant laws need to be changed, but after careful review, I have chosen to provide clarity on how the existing law should be enforced by law enforcement and mental health agencies."

In 2005, the General Assembly amended certain statutes by which courts are authorized to order involuntary mental health treatment. One change altered Va. Code Section 37.2-819, the statute requiring reporting of mental health adjudications to the Central Criminal Records Exchange. Previous language required reporting an adjudication that a person was mentally ill and a danger to himself or others only if that person was then “committed to a hospital.” The 2005 change broadened the language to require such a report if the person was “admitted to a facility.” There are several reasonable interpretations of the phrase “admission to a facility,” since the term “facility” is defined expansively as any “state or licensed hospital, training center, psychiatric hospital, or other type of residential or outpatient mental health or mental retardation facility.”

After reviewing current practice among courts in the Commonwealth, the Governor believes it is important to standardize practices by reporting any involuntary treatment order, whether for inpatient or outpatient services, into the central database.

Currently, only 22 states, including Virginia , submit any mental health information at all to the federal database: Alabama , Arizona , Arkansas , California , Colorado , Florida , Iowa , Kansas , Kentucky , Maryland , Michigan , Missouri , New Hampshire , New York , North Carolina , Ohio , South Carolina , Tennessee , Utah , Washington , and Wyoming . Nearly half of the reports submitted nationally on mentally ill people have been submitted by

Virginia

: of the almost 165,800 people reported nationally, about 80,500 were submitted by

Virginia

, according to State Police.

Twenty-eight states do not submit any information at all about mental condition to federal authorities, according to the FBI. Governor Kaine and Attorney General McDonnell have pledged to urge their counterparts across the nation to participate through their memberships in the National Governors Association and the National Association of Attorneys General, respectively.

Relevant Code Provisions

37.2-819 - Order of involuntary admission forwarded to CCRE; firearm background check.

The clerk shall certify and forward forthwith to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of any order for involuntary admission to a facility. The copy of the form and the order shall be kept confidential in a separate file and used only to determine a person's eligibility to possess, purchase, or transfer a firearm.

37.2-100 – Definitions

"Facility" means a state or licensed hospital, training center, psychiatric hospital, or other type of residential or outpatient mental health or mental retardation facility. When modified by the word "state," "facility" means a state hospital or training center operated by the Department, including the buildings and land associated with it.

18.2-308.2:2 (B)(1) - Criminal history record information check required for the transfer of certain firearms.

Upon receipt of the request for a criminal history record information check, the State Police shall (1) review its criminal history record information to determine if the buyer or transferee is prohibited from possessing or transporting a firearm by state or federal law, (2) inform the dealer if its record indicates that the buyer or transferee is so prohibited, and (3) provide the dealer with a unique reference number for that inquiry.

NUMBER FIFTY (2007)

REPORTING CRITICAL SAFETY DATA
TO THE CENTRAL CRIMINAL RECORDS EXCHANGE

Importance of the Issue
In the aftermath of the murders and injuries on the campus of Virginia Tech on April 16, 2007, and in order to promote the safety of the residents of our Commonwealth, it is imperative that we take steps to make sure that laws affecting the purchase of firearms by persons with mental illness adjudicated by a court are carefully reviewed.

The General Assembly will determine during its 2008 session what legislative changes are appropriate in this regard.  In the meantime, however, it is important that we take appropriate administrative steps to bring greater clarity to how existing laws governing the purchase of firearms by those who have been ordered to receive involuntary treatment for mental illness by a court are to be interpreted by the executive branch.

Such steps should include reporting to relevant databases all mental health adjudications that determine a person is mentally ill and a danger to himself or others, and thereby required to receive mental health treatment, whether on an inpatient or outpatient basis.  The full inclusion of such adjudications in state and federal databases would bar such an individual from gun purchases until such time as his or her right to purchase firearms is restored by a court.

Statutory Authority
In 2005, the General Assembly amended certain statutes by which courts are authorized to order involuntary mental health treatment.  One such change altered Va. Code Section 37.2-819, the statute requiring reporting of mental health adjudications to the Central Criminal Records Exchange.  Previous language required reporting an adjudication that a person was mentally ill and a danger to himself or others only if that person was then “committed to a hospital.”  The 2005 change broadened the language to require such a report if the person was “admitted to a facility.”  There are several reasonable interpretations of the phrase “admission to a facility,” since the term “facility” is defined expansively as any “state or licensed hospital, training center, psychiatric hospital, or other type of residential or outpatient mental health or mental retardation facility.”

After review of the statutes and the practices among

Virginia

courts, I believe it is appropriate for all agencies to report any mental health adjudications leading to involuntary treatment, premised upon a danger finding, whether or not such treatment is to be received in an inpatient or outpatient setting.

Direction to Executive Branch Employees
I therefore direct that all executive branch employees consider any involuntary treatment order pursuant to §37.2-817, whether inpatient or outpatient, to be an “admission to a facility” for purposes of §37.2-819, using the definition of “facility” cited above from §37.2-100.  This includes, without limitation, a direction that forms, announcements, training, and executive branch procedures affected hereby be revised accordingly.

I further direct the Virginia State Police to request copies of orders both for involuntary inpatient and involuntary outpatient care from the appropriate district courts, and to revise SP-237, the form by which they request such orders.  The State Police shall include such orders in the Central Criminal Records Exchange and share such data as appropriate with federal law enforcement agencies. Pursuant to its duties under Section 18.2-308.2:2, the State Police shall report to the requesting firearms dealer any person who has been ordered by the court to receive such involuntary inpatient or outpatient mental health care as described herein and such person shall be prohibited from purchasing a firearm from that dealer until that person’s firearms rights have been restored.

I further direct the Department of Mental Health, Mental Retardation and Substance Abuse Services to revise DMH 1006, the form by which it petitions for involuntary care, to reflect that both inpatient and outpatient involuntary care are to be reported to the Central Criminal Records Exchange.

Effective Date of the Executive Order

This executive order shall become effective upon its signing and shall remain in full force and effect unless amended or rescinded by further executive order.

Given under my hand and under the Seal of the

Commonwealth

of

Virginia

this 30th day of April 2007. 

BILL BOLLING ADDS:

“I applaud the Governor’s decision to close this obvious loophole in current state law by Executive Order. No one who has been determined by a responsible judicial authority to be mentally ill and a threat to themselves or others should be allowed to purchase a gun. “Unfortunately, the recent tragic shootings at Virginia Tech vividly revealed that Virginia ’s current laws in this regard are inadequate and must be revised. By requiring that this information be reported to the appropriate federal authorities, and included in the Central Criminal Records Exchange, we can lessen the chance of this happening again in the future. “However, the ultimate solution to this problem must come in the form of legislation considered and approved by the General Assembly. I am currently working with the Division of Legislative Services to draft such legislation for consideration during the 2008 legislative session.”

The Virginia Way at its best. We can be proud of our statewide leaders all around.

Comments

[ghost of elvis]

so, why did NLS knock mcdonnell for going to regent when the governor trusts his advice?

I think they have egg on their face.

[Chris]

Just posted more on that.

[George Templeton]

This is the Virginia way at work. Instead of sniping with people looking for partisan advantage for 2007 we have people working together to find solutions. This is a great state to live in.

[Chris]

Most definatly. Kaine deserves a lot of credit. I bet the right will give Kaine MUCH more praise then the left will McDonnell.