The giant mental-health loophole in Wyoming’s gun regulations

FROM WYOFILE:

Some people barred from firearm ownership for safety reasons are still able to buy weapons.

In Wyoming, someone can be deemed a danger to themselves or others, be committed to the state hospital for severe mental illness, be released, go directly to a store and buy a firearm.

Such gun purchases violate federal law, and potentially state law. But because Wyoming is one of only three states that don’t regularly report people who have undergone mental health adjudication to the federal National Instant Criminal Background Check System, or NICS, pre-purchase enforcement is all but impossible.

Gun retailers use the NICS system to make sure customers are allowed to buy guns, excluding, for example, felons, those convicted of domestic violence and those dishonorably discharged from the military. In most instances, NICS also flags those who are ineligible because they’ve been involuntarily committed, found incompetent to stand trial, found not guilty by reason of insanity or found by a court to be unable to manage their own affairs.

There have been efforts to change NICS reporting in Wyoming going back more than a decade, including from organizations like the National Rifle Association and National Shooting Sports Foundation — groups that represent firearm manufacturers and retailers around the country.

The background check system “is only as good as the database it depends on,” Nephi Cole with the Shooting Sports Foundation told WyoFile. “Garbage in, garbage out.”

However, when it was last attempted, legislation to change NICS reporting faced stiff backlash from groups like Wyoming Gun Owners, who’ve labeled its supporters as “Gun Grabbers” and “swamp creatures.”

Lawmakers also voiced concerns about taking away individuals’ rights and disincentivizing people from seeking treatment.

Efforts to improve Wyoming’s NICS reporting in the last decade also included provisions for people to restore their gun rights once they’re doing better — something the state recently did for certain nonviolent felons.

Currently, there’s no easy path for individuals to regain their gun rights in Wyoming if they’ve been committed to a mental institution or found “mentally defective.” That could open up Wyoming citizens to future prosecution if they bought a gun after having been institutionalized, regardless of whether they’re in the NICS system.

Ongoing debate

This year, Wyoming legislators banned “red flag” laws, which are used in other states to confiscate firearms from people who are suspected to be a threat to themselves or others but haven’t yet been officially adjudicated as such.

That new law offers exceptions, however, allowing firearms to be taken from certain people or banning them from purchasing guns. That includes if they’re “currently adjudicated to be legally incompetent” or have been “committed to a mental institution.”

Without listing those individuals in the NICS system, though, retailers can’t know who’s allowed to have a gun and who isn’t. Not even the Wyoming Department of Health has data on mentally adjudicated people “and would not expect to,” according to spokesperson Kim Deti.

The state’s Division of Criminal Investigation does submit other people’s names to the NICS list, including those convicted of certain crimes. And while there were 25 people listed as “adjudicated mental health” by Wyoming in the NICS system as of late last year, each had also been charged with other crimes, according to Deputy Director Allison Moore.

Montana and New Hampshire — the two other states that don’t regularly report mental health adjudications to NICS — show similarly low numbers. But states like Idaho and Nebraska are a different story, with 43,793 and 35,227 people with mental health adjudications listed in NICS, respectively.

The National Shooting Sports Foundation still believes this loophole needs to be fixed in Wyoming, Cole said.

“The database needs to work,” he said. “We really want it to work.”

Lawmakers have been voted out for supporting this kind of legislation though, Cole added. So he’s no longer asking them to try to fix the problem.

“What we’re not willing to do is to have an effort like that mischaracterized that way again, and have it be inaccurately portrayed as something it’s not, and harm good legislators because they worked on something that important,” he said. “We’re not going to do it.”

How we got here

Congress passed the Brady Handgun Violence Prevention Act in 1993 to help prevent firearms from falling into the wrong hands by mandating federal background checks for those purchasing a gun from a licensed dealer.

Working with groups like the National Shooting Sports Foundation, the NICS system was born out of the Brady Act to be a fast-acting check that balanced safety with convenience. But not every agency started adding relevant data right away.

Following the Virginia Tech University shooting in 2007, Congress enacted legislation requiring federal agencies to add all possible data to NICS and incentivized states to do the same via grants and other support.

In addition to the Virginia Tech shooter, lawmakers cited a March 2002 shooting of a priest and a parishioner at Our Lady of Peace Church in New York.

“The man who committed this double murder had a prior disqualifying mental health commitment and a restraining order against him, but passed a Brady background check because NICS did not have the necessary information to determine that he was ineligible to purchase a firearm under Federal or State law,” the legislation states.

The law, however, didn’t require states to input data — it just offered incentives for doing so. That led to a patchwork of reporting, setting off advocacy nationwide to make NICS more comprehensive and keep guns out of the hands of people who aren’t legally allowed to have them.

A 2014 bill that sought to change Wyoming’s NICS reporting rules died without a committee hearing, with lawmakers concerned about everything from whether it violated health care confidentiality laws to whether it would disincentivize people in need from seeking treatment.

The Legislature’s Joint Judiciary Committee took up the topic again in the months between the 2014 and 2015 legislative sessions. This time, the effort included an avenue for those affected by the law to get their gun rights back.

“It provides an avenue in which an individual who has either been adjudicated mentally ill or has been involuntarily committed to regain their rights that have already been taken away,” Dakota Moore said at the hearing, lobbying on behalf of the NRA.

But during discussions — which were recorded by the Legislative Service Office — some lawmakers were still clearly concerned about taking people’s gun rights away or potentially barring someone with unrelated mental health issues like anorexia from buying firearms.

Still, another committee member — WyoFile was unable to determine on the recording who spoke — questioned whether this “fix” should be passed when the commitment process still needs improvement.

“I think we fix our system first because I think we’re trying to add superglue to a popped tire in my opinion,” the lawmaker said.

Citing a clear rift between committee members, then co-chairman Sen. John Schiffer (R-Kaycee) tabled the idea.

Former-Shooting Sports Foundation lobbyist David Picard told WyoFile he blamed the effort’s failure on misinformation and “a lack of understanding” about how the mentally adjudicated are already prohibited from buying guns and that the legislation could restore their rights.

Wyoming Gun Owners rejoiced.

“Yesterday, you WON in a serious gun control skirmish,” then lobbyist and now Sen. Anthony Bouchard (R-Cheyenne) wrote in an email to members.

The Joint Judiciary Committee took another shot at a fix in 2019, but voted 8-6 against introduction.

Then-Rep. Tim Salazar (R-Riverton) — now a senator — said at the time he was concerned the bill could morph into a red flag law.

A handful of lawmakers who supported the idea introduced a bill anyway in 2020 — but then-Rep. Bill Pownall (R-Gillette) pulled it shortly after submission.

The former law enforcement officer released a statement afterwards, the Wyoming Tribune Eagle reported, saying: “Unfortunately, a false narrative has emerged that grossly mischaracterizes the intent and implications of this bill,” while also noting the limited time available during a budget session.

In response, Wyoming Gun Owners wrote: “In less than 10 days, almost 5,000 emails slammed into the Capitol from WYGO members — letting everyone in Cheyenne know what will happen to their careers should they back this disgusting legislation.”

Wyoming Gun Owners did not respond to requests for comment for this story.

New research

More recently, research published in the medical journal JAMA noted the continued patchwork of NICS reporting across the U.S.

As it turns out, there are more states than Wyoming, Montana and New Hampshire that don’t require or have legal allowances for mental health adjudications to be reported to NICS. Ohio and Arkansas don’t either — but even so, those states still report thousands of mentally adjudicated people to NICS.

Gun suicide prevention researcher Emmy Betz isn’t sure why that is, but it’s on her long list of things to look into.

“I think it’s a fascinating question,” she said. “If a state doesn’t require or prohibit it, but clearly people are reporting, what’s happening there?”

Betz, an emergency room doctor and director of the Firearm Injury Prevention Initiative at the University of Colorado School of Medicine, was lead author on the JAMA study.

It’s important to arm people with data on gun laws around the U.S., she said, and to gain bipartisan understanding of the firearm legal landscape.

While Betz expects broad support for keeping firearms out of the hands of people who’ve recently been committed to psychiatric facilities, she said it’s important to make sure we aren’t overly prescribing mental health adjudications in the U.S., stripping people of rights without good reason.

“I think it’s really important that we not be overly classifying people as mentally incompetent, right?” she said. “Because it is a big deal, and it can be difficult to get rights restored.”

In the future, Betz also hopes to look into avenues for these individuals to regain rights where that’s possible. And at the end of the day, she hopes there can be bipartisan agreement on how to keep people safe — from themselves and others.

“We really are coming at this from a space that’s trying to be nonpartisan and just look at the situations,” she said. “And push some of these scenarios where hopefully people have a gut instinct of what they think is right.”

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.

This story was posted on April 29, 2024.