Campus Shooting Highlights Legal Loophole

Feb. 19, 2008— -- Law enforcement sources confirm that Northern Illinois University shooter Stephen Kazmierczak struggled with persistent mental illness that, at times, had the potential to make him a danger to himself, but he was, nevertheless, able to legally purchase the guns he used in his campus rampage.

After the shootings, NIU parents expressed outrage and disbelief over his access to guns, echoing grievances brought up by parents after last April's shootings at Virginia Tech.

"Why was this tormented young man able to carry out this massacre?" NIU parent Connie Catellani asked. "How could he legally obtain a weapon, designed to kill so many people in such a short time?"

Law enforcement officials told ABC News that Kazmierczak's parents placed him in a Chicago mental institution, for months of intensive treatment, when he was a teenager, and that he remained on medication as an adult.

Despite past treatment for mental health problems, Kazmierczak, 27, was able to purchase four guns in three visits to a gun store in Champaign, Ill., over a six-month period. Each time, he filled out a federal form, which asks two critical questions:

"Have you ever been adjudicated mentally defective (which includes a determination by a court, board, commission or other lawful authority that you are a danger to yourself or to others, or are incompetent to manage your own affairs)?" the form asks, "or have you ever been committed to a mental institution?"

Federal law says that if a court orders a person's commitment to a mental institution, that information is supposed to go into a federal database. A background check against that database would flag such a gun buyer, who would not be legally allowed to buy a firearm.

Police believe Kazmierczak's parents — not a judge — voluntarily committed him. Under current law, that voluntary commitment by his family would not make it illegal for him to purchase guns.

Gun control advocates say the law presents a gaping, potentially dangerous loophole.

"Right now, the presumption in American society is that anybody should be able to get a gun at any time, very quickly. And we need to start saying that, for some people, who have shown clear signs of being mentally troubled, of being a danger to themself or others, that that should no longer be the presumption," said Paul Helmke, president of Brady Campaign to Prevent Gun Violence, told ABC News.

"Perhaps they can show that they are no longer a danger," he said, "but the presumption should be, no gun until you've had a clear showing that you're beyond that."

Ye even if Kazmierczak had lied on the form about his mental health, or if a judge had ruled him mentally incompetent or dangerous, authorities say it is unlikely a background check would have blocked the gun sales.

The reason: mental health records are not always readily available to police.

Seung-Hui Cho, the shooter in the Virginia Tech massacre, who killed 32 people before taking his own life, was able to buy a gun, even though a court had previously concluded that he was a danger to himself and others.

Since that campus tragedy, a measure that provides funds for initiatives that make mental health records more readily available, made its way through Congress and hit the books last month, after President Bush signed it into law. But police and gun control supporters worry it might take a long time to implement the new provisions — if it ever happens.

"Bureaucracies generally don't like to take on new activities. And what we've been finding, so far, in talking to various states is, everyone's pointing the finger, saying, 'That's not my job, we haven't done that before,'" Helmke said.

Thirty-two states provide some mental health records for federal background checks on handgun purchases — meaning the remaining 18 don't provide any, often citing the expense, and time-consuming nature of such an undertaking, or patient privacy concerns.

The states that do contribute records have added 402,000 files to the FBI's National Instant Criminal Background Check System, known as NICS.

The system allows gun dealers to call a toll-free number to submit customer information to be checked against the database. In most cases, dealers get a response within 30 seconds.

The NICS database has more than doubled since the Virginia Tech shootings; two weeks before the incident, on April 1, 2007, it contained 165,778 records from 22 states.

But the federal government cannot compel states to turn in the records, and critics point out that the majority of the records currently in the system came from only three states: Virginia, California and Michigan together contributed about 368,000 records to the catalog.

Yet with recent increases in the number of records, the database still only contains a fraction of what's filed in courts across the nation.

Helmke said 25 percent of felony records, and 80 percent to 90 percent of mental health records are missing from the system.

"With the passage of the Brady bill in 1993, we now do a background check. But the background check is only as good as the records that the states send into the system," Helmke said.

"Most states do a lousy job of sending those records in, and we allow other loopholes, like, that you can buy this with or without a background check at a gun show," he continued. "With that sort of system, we really don't have much of a restriction on keeping dangerous people from buying guns."