WASHINGTON – Under federal law, the Virginia Tech gunman Seung-Hui Cho should have been prohibited from buying a gun after a Virginia court declared him to be a danger to himself in late 2005 and sent him for psychiatric treatment, a state official and several legal experts said Friday. Federal law prohibits anyone who has been “adjudicated as a mental defective,” as well as those who have been involuntarily committed to a mental health facility, from purchasing a gun. A special justice’s order in late 2005 that directed Cho to seek outpatient treatment and declared him to be mentally ill and an imminent danger to himself fits the federal criteria and should have immediately disqualified him, said Richard J. Bonnie, chairman of the Virginia Supreme Court’s Commission on Mental Health Law Reform. A spokesman for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives also said that if found mentally defective by a court, Cho should have been denied a gun. The federal law defines adjudication as a mental defective to include “determination by a court, board, commission or other lawful authority” that as a result of mental illness, the person is a “danger to himself or others.” Cho’s ability to buy two guns despite his history has cast new attention on the adequacy of background checks that scrutinize potential gun purchasers. And since federal gun laws depend on states for enforcement, the failure of Virginia to flag Cho highlights the often-incomplete information provided by states to federal authorities. Only 22 states submit any mental health records to the federal National Instant Criminal Background Check System, the FBI said in a statement on Thursday. Virginia is the leading state in reporting disqualifications based on mental health criteria for the NICS system, the statement said. But Virginia state law on mental health disqualifications to firearms purchases is worded slightly differently from the federal statute. So the form that Virginia courts use to notify state police about a mental health disqualification only addresses the state criteria, which lists two potential categories that would warrant notification to the state police – someone who was “involuntarily committed” or ruled mentally “incapacitated.” “It’s clear we have an imperfect connection between state law and the application of the federal prohibition,” Bonnie said. The commission he leads was created by the state last year to examine the state’s mental health laws. Bonnie, the director of the University of Virginia Institute on Law, Psychiatry and Public Policy, said his panel would look into the matter: “We are going to fix this.” Bonnie said he believed similar problems exist elsewhere in the country: “I’m sure that the misfit exists in states across the country and the underreporting exists.” After two female students complained about his behavior in 2005, Cho was sent to a psychiatric unit for evaluation and then ordered to undergo outpatient treatment, which would not qualify as an involuntary commitment under Virginia law, Bonnie said. “What they did was use the terms that fit Virginia law,” he said. “They weren’t thinking about the federal. I suspect nobody even knew about these federal regulations.” But Christopher Slobogin, a law professor at the University of Florida who is an expert on mental health, said that under his reading of Virginia law, outpatient treatment could also qualify as involuntary commitment, meaning Virginia law should have barred him from buying a weapon as well, an interpretation that Bonnie said he and the state’s attorney general disagree with. Slobogin added that the federal statute “on the plain face of the language, it would definitely apply to Cho.” A spokesman for the Virginia state attorney general’s office declined to comment Friday, saying only that various agencies were “reviewing this situation.” Richard Marianos, a spokesman for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, said Friday that federal and state officials were looking into the question, studying the court proceedings and testimony. But he added: “If he was adjudicated as a mental defective by a court, he should have been disqualified.” Dennis Henigan, legal director at the Brady Center to Prevent Gun Violence, said the oversight on the federal law in Virginia has probably been occurring for some time. “They may have been doing this for years, just basically assuming, if the guy’s not disqualified under state law, then we don’t have to send anything to the state police,” Henigan said. “It’s a failure to recognize the independent obligation to the federal law.” Most states do not follow the letter of the federal law when it comes to the mental health provisions, said Ron Honberg, legal director for the National Alliance on Mental Illness, an advocacy group. “I suspect if we look at all the requirements that exist for the states, there’s probably a whole lot of them that don’t implement them,” Honberg said, explaining that the gap often comes from a lack of resources but also because no one is enforcing the requirements. “When something like this happens, then people start to pay attention to this,” he said. Rep. Carolyn McCarthy, D-N.Y., has been pushing a bill to require states to automate their criminal-history records so that computer databases used to conduct background checks on gun buyers would be more complete. The bill would also require states to submit their mental health records to their background check systems and give them money to allow them to do so. According to gun control advocates, however, the mental health information submitted to the NICS is often spotty and incomplete, something McCarthy’s bill is designed to address. Rep. John Dingell, D-Mich., a former member of the National Rifle Association’s board of directors, is co-sponsoring the bill, which has twice passed the House only to stall in the Senate. According to congressional aides, he is negotiating with pro-gun groups to develop language acceptable to them. “The NRA doesn’t have objections,” Dingell said in an interview. “There are other gun organizations on this that are problems.” A spokesman for the NRA declined to comment Friday on the legislation, but Dingell said the measure could prevent future tragedies: “It resolves some serious problems in terms of preventing the wrong people from getting firearms.” 160Want local news?Sign up for the Localist and stay informed Something went wrong. Please try again.subscribeCongratulations! You’re all set!