Q&A: U.Va. Law Professor Richard Bonnie Discusses Gun Control, Mental Health Policies in Aftermath of Deadly Shootings

In the wake of a number of deadly mass shootings – including most recently at the Navy Yard in Washington, D.C. – University of Virginia law professor Richard Bonnie is serving as part of a consortium of mental and public health experts who are attempting to establish risk-based policies to curb gun violence.

Bonnie chaired the Virginia Commission on Mental Health Law Reform, which was coordinated alongside the Virginia Tech Review Panel that was convened after the 2007 shootings at Virginia Tech. In 2012, Bonnie met with Vice President Joe Biden and other federal officials on reducing gun violence following the Sandy Hook shooting,and he testified before a panel convened by Connecticut Gov. Daniel Malloy to recommend policy reforms in the aftermath of that school shooting.

Bonnie recently discussed what measures might be feasible to keep guns out of the hands of people who pose legitimate threats to society.

Q. Should federal or state laws be changed to further limit access to guns by the mentally ill? Can you give you some specific suggestions?

A. The most important change that should be made to gun policy is to make more gun purchases subject to background checks. Another important change is to prohibit firearm purchases (as well as possession in public) by individuals who have had misdemeanor convictions for violent offenses, especially those involving brandishing or firing guns. (Right now, people are disqualified from firearm purchase only if they have been convicted of felonies or misdemeanors involving domestic violence.) Doing this would disqualify individuals whose conduct has clearly demonstrated an elevated risk of violence, whether or not they have been diagnosed with a mental illness.

Police should also have the authority to seize firearms from individuals whose behavior demonstrates an elevated risk of violence, as allowed by laws in Indiana and Connecticut.

As these recommendations suggest, the significance of “keeping guns away from the mentally ill” should not be seen as the core strategy for reducing gun violence, because 95 percent of violence is committed by people without mental illness. The focus should be on elevated risk and dangerous conduct, not on a diagnosis of mental illness. That said, however, restricting access to guns by people at elevated risk of suicide – or of violence to other people – due to symptoms of severe mental illness is a sensible component of a strategy for reducing gun-related deaths as long as the reportable events are not so broadly defined as to deter people from seeking mental health treatment – a policy error that would actually increase suicide and violence rather than reduce it. For the most part, a person’s rights should be restricted only if they have been involuntarily committed to mental health treatment. Unfortunately, several states have unwisely taken rights away based solely on voluntary psychiatric hospitalization.  

Q. Are there existing systems that could be improved to prevent people who are mentally ill and potentially violent from obtaining guns?

A. In addition to broadening the reach of the background check system in the ways mentioned above, we should also make sure that people who have disqualifying mental health histories (mainly involuntary commitment) are reported to the National Instant Background Check System (NICS). Better state reporting of judicially ordered commitments is possible and federal funding is available to the states to improve their data infrastructure.

However, another problem is the tremendous variations in state and local commitment practices. Psychiatric hospitalizations in many states are essentially localized medical processes that do not result in a judicial proceeding unless the hospitalized person seeks one. In such states, reporting to NICS faces many practical obstacles and raises serious legal problems as well. Although improvement is possible, it would be a policy mistake to convert tens of thousands of medically certified hospitalizations into judicial commitments simply to increase the number of cases in the NICS system.

Q. You have been working on the topic of gun violence and mental health for some time, and you met with Vice President Joe Biden and other federal officials about it last year. How are you continuing to work on this issue?

A. I am working with other experts in mental health and public health to formulate risk-based firearm policies and to draft model legislation to implement them. Our consortium aims to balance a commitment to public safety with respect for the rights of persons with serious mental illness.

In developing the strategy, the group sought an approach that would not further stigmatize individuals with serious mental illness or discourage them from seeking mental health treatment. The group recognized that the large majority of people with mental disorders do not engage in violence against others, and that most violent behavior is due to factors other than mental illness. However, psychiatric disorders such as depression are strongly implicated in suicide, which accounts for more than half of gun fatalities.

The group concluded that refocusing on evidence-based, time-sensitive risk criteria in prohibiting gun access – including risk of suicide – is a more productive avenue for advancing current policy than focusing primarily on mental illness diagnoses and a record of psychiatric hospitalization at any time in one's life. We identified three key aspects of our legislative strategy:

• Disqualification from purchasing or possessing firearms based on mental health concerns should derive from the well-established policies and protections of the civil commitment process and should not be based on voluntary treatment. 
• The statutory categories that make a person ineligible to purchase or possess a firearm should include conduct demonstrating an elevated risk of dangerousness.  
• Law enforcement and family members should be able to petition a court to authorize seizure of firearms and issue a temporary prohibition on the purchase and possession of firearms based on a specific, substantiated threat of physical harm to self or others.

We expect to unveil our proposals over the next several months, and to host a public forum here at the University of Virginia on Dec. 2.

Q. What is the key message that you’d like to convey to Congress on the topic of mental health policy and access to firearms?

A. As we all know, gun control is a highly polarizing topic, and important values are at stake on both sides of this debate. The challenge is to find the common ground. I believe that one of the opportunities for doing so lies in shifting the focus from diagnoses of mental illness to risk-based classifications based on conduct manifesting an elevated risk of violence. I think that emerging evidence of Aaron Alexis’ firearm-related misdemeanor arrests in Seattle and Fort Worth provides a useful case study of possible improvement in the background check system. 

Unfortunately, 20-20 hindsight, Alexis’ case also reveals a sequence of missed opportunities for intervention that may have uncovered his deteriorating condition and led to successful treatment for what appears to have been serious mental illness. Heightened attention to mental health literacy through the population, and especially among law enforcement personnel, should also be a high priority for federal and state policymakers.