Accused Killer Got Gun Legally
By Ed Treleven, The Wisconsin State Journal
Jun. 10–Daniel Kelly walked into a federally licensed gun shop and legally bought the gun he’s accused of using to kill a man on State Street — even though Kelly has a history of schizophrenia and stays at mental institutions.
He could buy the gun because under state gun law those with mental illness can be barred from buying a gun only if a judge has ordered them involuntarily committed to a mental institution and barred them from possessing a gun. Though Kelly has spent time in mental institutions, he has never been involuntarily committed.
Police and prosecutors won’t say where Kelly got the gun that he’s accused of using to shoot Austin Bodahl and whether the gun was legally purchased. But Kelly’s attorney, Assistant Public Defender Dennis Burke, told the State Journal that Kelly said he bought the .22 caliber five-shot minirevolver from the Ammo Box in Sun Prairie. Ammo Box owner Trygve Strand won’t comment.
Kelly, 31, of Madison, has been charged with first-degree reckless homicide in the shooting of Bodahl, 23, a transient from Minnesota, during a fight on May 22 that was watched by a number of people.
Burke said Kelly, who lived on $900-per-month in military and disability payments, has never been involuntarily committed to a mental institution, though he spent three months at Mendota Mental Health Institute about 1 1/2 years ago as part of a "hold open" agreement reached during a mental commitment procedure in Dane County Circuit Court.
Under the agreement, Burke said, Kelly wouldn’t be involuntarily committed if he stayed at Mendota for 90 days, took prescribed medications and complied with rules. He did that, Burke said, and the petition was dropped. Prosecutors have also said that Kelly recently spent time in the mental health ward of a veteran’s hospital, but Burke said that also was not an involuntary commitment.
Virginia Tech
Questions about gun ownership and mental illness arose after the April 16 massacre at Virginia Tech University by student Cho Seung-Hui, who killed 32 people and himself. Cho was able to buy the handguns he used in the shootings even though he had been declared by a court to be a danger to himself and others in late 2005. But he wasn’t flagged by Virginia because he was ordered to seek outpatient mental health treatment, which didn’t qualify under Virginia law as an involuntary commitment.
Cho bought one of his guns online from a Green Bay gun shop, which shipped it to a shop in Blacksburg, Va. Cho passed state and federal background checks conducted by the Virginia shop.
Wisconsin law is similar and prohibits gun purchases by people who have been involuntarily committed for treatment of mental illness, drug dependency, or developmental disability, if a judge deems the person to be a threat to himself or others. and orders that person not to possess a gun The ban remains in effect until the person is judged to know longer suffer from a mental illness and to no longer be a threat.
The standard has similarities to federal law. That law prohibits firearms purchases by people "adjudicated as a mental defective." But Ron Honberg, legal director for the National Alliance for the Mentally Ill in Arlington, Va., said it’s unclear exactly whom the federal law covers.
"Our concern about the federal law is that the term that is used is people who are adjudicated as mental defectives," Honberg said. "And when you look at the definition of that in the regulations that were used by the (federal Bureau of Alcohol, Tobacco and Firearms), it seems to be potentially quite a bit broader than just people who are involuntarily committed."
Honberg said NAMI is pushing for more clarity in the federal definition.
"Maybe the intent is to limit it only to people who have been involuntarily committed but the reality is that a lot of states aren’t reporting it anyway," he said.
Federal check
Only 23 states tell the federal government who has been involuntarily committed to mental institutions so that those people can be added to the FBI’s National Instant Criminal Background Check System, or NICS. Wisconsin law prevents sharing mental health information with NICS because of privacy concerns.
A bill proposed by state Sen. Alberta Darling, R-River Hills, in reaction to the Virginia Tech massacre, would require Wisconsin to release mental health information to NICS.
Honberg said NAMI would like to see state and federal standards broadened so that mental health information is combined with records of past violence or the potential for violence to determine who would be added to lists of people barred from buying guns.
Honberg points to California’s handgun background law which goes beyond involuntary commitment as the standard. For example, it prohibits the sale of guns to a person who is receiving inpatient treatment for a mental illness and is deemed by mental health professionals to be a danger to himself or others. It applies even if the person has consented to the treatment, although the prohibition ends as soon as the patient is discharged from the facility.
The California law also bars the sale of a gun to someone who has made a serious threat of violence against a specific person to a licensed psychotherapist.
"To me that’s a better way to go because it’s actually a fairly broad list," Honberg said, "but it’s linked to a finding of dangerousness or potential dangerousness, as opposed to just deciding that if someone has a psychiatric diagnosis they’re dangerous."
As in Wisconsin, efforts to change federal law have focused on requiring states to report mental commitments to NICS.
"The short answer is, no, there hasn’t been any serious revisitation of the current federal prohibited categories," said Kristen Rand, legislative director for the Violence Policy Center in Washington, D.C. "It just really would be a huge battle with mental health organizations and even the gun lobby as well."
Rand said that mental illness was a factor in a significant percentage of major mass shootings in the U.S.
"It’s a real problem, and there has been no willingness or effort to address it at the federal level," Rand said.
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Authorities have declined to say where Kelly, who was homeless and lived on $900-per-month in military and disability payments, got the .22 caliber five-shot mini-revolver that he used to shoot Bodahl. But Kelly’s attorney, Assistant Public Defender Dennis Burke, told the State Journal that Kelly said he bought the gun from the Ammo Box in Sun Prairie. Ammo Box owner Trygve Strand has declined to comment.
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