Cracks in Florida's reporting system allow an untold number of mentally ill people to buy guns, as happened in Wednesday's school shooting, which is prompting a review at the state and federal level about sales restrictions.
In general, buyers are reviewed for court orders of mental defects, such as being committed involuntarily to a mental institution or acquitted of a crime for mental illness, but not voluntary hospitalizations.
On Monday, President Trump indicated he would be open to improving background checks.
"While discussions are ongoing and revisions are being considered, the president is supportive of efforts to improve the federal background check system," White House press secretary Sarah Sanders said.
Trump spoke Friday with Sen. John Cornyn, R-Texas, about legislation with Sen. Chris Murphy, D-Conn., to improve compliance with the federal criminal background check for gun buyers, which includes adjudications for mental illness.
Florida Gov. Rick Scott said last week that he would discuss with the Legislature how to prevent people with mental illness from getting their hands on guns.
“If somebody is mentally ill, they can’t have access to a gun,” Scott said.
The efforts follow the shooting deaths of 17 people Wednesday at Marjory Stoneman Douglas High School in Parkland, Fla. Nikolas Cruz, 19, is charged with murder in the case.
His public defender, Melisa McNeill, described Cruz in his initial court appearance Thursday as a "broken child" who suffered brain-development problems and depression.
The FBI revealed Friday that somebody called a tip line Jan. 5 to warn about Cruz’s gun ownership, desire to kill people, erratic behavior and disturbing social media posts. FBI Director Christopher Wray said the agency is reviewing why the tip wasn’t investigated and is committed to improving.
More about the Florida rampage and gun laws:
Regardless of warning signs, Cruz bought the AR-15-style rifle used in the attack about a year ago, according to Peter Forcelli, special agent in charge of the Miami office of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
“Under the gun laws that we have in this country, including in Florida, a teenager can be prohibited from purchasing an alcoholic beverage, but yet that same teenager can purchase a military-style weapon,” said Jimmy Gurule, a Notre Dame law professor who was a federal prosecutor and former assistant attorney general in the Bush administration. “That’s an insane system.”
In Florida, people 18 years old or older can buy rifles and shotguns, while waiting until at least 21 years old to buy handguns. Purchases of long guns have no waiting period, while handguns have a three-day waiting period.
The buyer fills out three pages of questions on an ATF form, including about felony convictions and substance abuse.
Question 11E is: “Have you ever been adjudicated as mental defective or have you ever been committed to a mental institution?”
“Of course you can lie,” said MASA Firearms owner Moti Adika, pointing to what he called a “loophole” in which police may not know about a person’s mental illness.
Buyers are then checked against the FBI’s National Instant Criminal Background Check System. In 2016, the system had 15.8 million records that could prohibit gun sales, including nearly 4.7 million for adjudicated mental health.
Gun buyers are seldom turned down because of mental illness. From 1998 to 2014, the FBI rejected 16,669 potential gun buyers because a background check found a mental health adjudication, about 1.4% of the roughly 1.2 million background checks that resulted in a denial.
In Florida, nearly 13,000 purchases were rejected out of 990,000 background checks, according to the Florida Department of Law Enforcement. But the state didn't track the reasons for denials, such as mental illness.
If someone was admitted voluntarily to a mental hospital, rather than because of a court order, information about the stay will “probably not” reach law enforcement officials who are responsible for doing the background checks on prospective gun buyers, ATF Special Investigator Richard D’Agostino said.
Unless a patient poses a threat to himself or others, there’s no law requiring the hospital to report it, he said.“It’s up to the doctor to make that decision,” D’Agostino said. “If they don’t notify, there’s nothing we can do about it.”
Timothy Lytton, associate dean for research and faculty development at Georgia State University College of Law, said there are several problems with the database because it represents a patchwork of local and state reporting.
“We're talking about 50 different state infrastructures. What about the idea that a lot of kids are thrown out of school for mental health issues? Is that school counselor required to report that to someone? If so, to who?”
Even if someone goes through the court system, it’s not entirely clear whether that information gets shared with law enforcement. Lytton said each state differs in what crimes and circumstances constitute an adjudication of “mentally defective.”
John Culhane, a professor at Widener University’s Delaware Law School, said court records are sometimes sealed or expunged for misdemeanors.
"There are many reasons why mental health problems that crop up in court could be missed," he said.
Under Florida law, a person has to be found “mentally defective” in a court of law to slow or stop the purchase of a firearm. “Mentally defective” is defined as “marked subnormal intelligence, or mental illness ... a danger to himself or herself or to others or lacks the mental capacity to contract or manage his or her own affairs.”
In order to qualify under Florida law, a judge must find that person not competent to stand trial, or they have to be acquitted of a crime by reason of insanity. The ruling would appear during the background check to buy a gun.
State law requires local courts to report when someone is adjudicated "mentally defective," regardless of their age or crime, according to Gretl Plessinger, spokesperson for Department of Law Enforcement. The mental status is determined by a judge and then filed to the database by a clerk, Plessinger said.
But there is no gun restriction under Florida law for someone who was privately hospitalized. Someone with a judicial finding of a mental defect, which could prevent a sale from a licensed seller, could buy a gun privately because background checks aren’t required for private sales.
The restriction is lax enough that authorities say there is no need to avoid the formal purchasing system by turning to private dealers.
“There’s no reason for him to buy anything off the books because there’s no reason for him to do it,” said Peter Beck, a former ATF agent. “Sometimes you just can’t prevent evil.”
The prospect of mentally ill people obtaining firearms sparked questions in state legislatures and in Congress.
“As you know, mental health is often a big problem underlying these tragedies,” House Speaker Paul Ryan, R-Wis., said Thursday. “We want to make sure that if someone's in the mental health system, that they don't get a gun if they're not supposed to get a gun. We will find out, as facts come out, whether there was a breakdown in the system or not here today.”
Sen. Bill Nelson, D-Fla., said the shooting could prompt changes in a variety of gun laws dealing with the age of buyers, their mental health and the caliber of weapons. But he’s not optimistic there are enough votes in the Senate to change the law.
“The fact is that it’s a combination of a number of things that have to be dealt with,” Nelson said. “Mental health is certainly one of them.”
Congress has also nibbled away at mental-health checks. One of the first bills Trump signed into law in February 2017 repealed an Obama administration rule that required the Social Security Administration to submit names of beneficiaries with mental impairments who also have a third party manage their benefits.
The rule aimed to prevent an estimated 75,000 with mental disorders from being able to buy a firearm, in response to the 2012 shooting deaths of 26 people at Sandy Hook Elementary School in Connecticut.
But lawmakers with backing of the National Rifle Association and advocacy groups for the disabled opposed the regulation for stigmatizing them.
Sen. Charles Grassley, R-Iowa, argued that people with illnesses such as eating and sleeping disorders could lose their right to bear arms.
But Murphy argued that people with serious mental illness who can’t manage their own finances shouldn’t be trusted to own dangerous firearms.
Contributing: Emily Bohatch, The (Stuart, Fla.) News.