RICHMOND, Va. – Governor Timothy Kaine has 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.

Governor Kaine was joined at the announcement by Virginia Attorney General Bob McDonnell, who 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 16 tragedy on the campus of Virginia Tech.

“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,” 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.”

Specifically, 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.

“Our office was pleased to work with Governor Kaine to quickly remedy this apparent ‘disconnect’ between state and federal law,” says McDonnell. “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.”

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. Kaine and 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.

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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 thebuildings 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 witha unique reference number for that inquiry.

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A Office of the Governor of Virginia press release.

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